sum of $50 on June 1, 1914, A may recover that sum on that date without having performed.

This is qualified by the rule that a condition will be implied that if prior to the time fixed for B tó pay, A repudiates the contract or makes the performance impossible, or becomes insolvent, or otherwise makes it certain that he cannot perform, payment by B will be excused. Likewise, if the expectation was that performance was to be complete before the time fixed for payment, and performance was after that time, the time for payment was extended. In such a case, one would be a condition of the other.13

Rule as to property. But if a day is fixed for payment in an agreement for the sale of any property, but nothing is said as to the time of delivering the deed or the chattel, the latter is deliverable when the money is payable. Thus, if A agrees to sell B his land for $5,000, and B agrees to pay that sum on January 3, 1914, the deed must be delivered on that date before A may sue for the money. The effect will be the same as if the same day had been expressly fixed for the payment of the money and the delivery of the deed. The two sides of the contract under this rule will be mutual and concurrent conditions.14

176. Breach of condition.-Two sorts of breaches may occur: (1) in limine, that is at the outset; and (2) after a part performance of the contract. If a breach of condition occurs before there is any performance, it is a breach in limine, and discharges the

13 Langdell, Summary of Contracts, rule 5 on Implied Conditions; Costigan, Performance of Contracts, pp. 48, 49.

14 See Skillman Hardware Co. v. Davis, 53 N. J. L. 144; 14 Yale L. J. 424.

contract, provided it is not a trifling or merely formal breach.15 Inasmuch as the law implies that each party shall be in a position to perform literally, such a breach in limine by the plaintiff constitutes a defense for the defendant. A trifling breach by A, although it may not justify non-performance, may nevertheless give rise to an action in favor of B for damages for breach of contract.

To constitute an excuse for non-performance a breach after part performance must be substantial, for the law will not imply a breach. There must be something more than a mere breach to indicate that the party is not going on with his agreement and that he is not merely failing to perform one element. A less breach will justify non-performance by B if the breach is in limine than if it takes place after part performance. To justify non-performance in the latter event, the breach must go to the substance, essence or root of the contract. It must defeat the main scope of the agreement.16 Thus, the temporary illness of an employee which does not go to the root of the contract will not prevent him from enforcing the contract; but if the illness makes it necessary to obtain a substitute who cannot, however, be engaged except for the full period of service of the sick employee, the illness goes to the root of the contract. The employer is discharged from further liability on the contract.17

177. Rules as to time.-When the contract fixes

15 Bettini v. Gye, 1 Q. B. D. 183 (Eng.).

16 Kauffman v. Raeder, 108 Fed. 171; Harriman, Contracts (2d ed.), § 516. 17 Poussard v. Spiers, 1 Q. B. D. 410 (Eng.); Leopold v. Salkey, 89 Ill. 412.

no time for performance, the contract is construed as allowing a reasonable time. Where A and B contract for the sale of A's horse for $100, the contract must be performed within a reasonable length of time. What constitutes a reasonable time depends upon the circumstances of each case. The difficulties, hazards and the amount of diligence used should be considered.18 The decisions are by no means uniform as to whether the question is one for the court or the jury. It would seem that what is a reasonable time in which a contract must be performed is a matter of law for the court when it depends upon construction, whereas it is a question of fact for the jury when there are matters in dispute or the question depends on facts extrinsic to the contract.

When a contract fixes a time for performance, and the parties agree that time is to be made of the essence, nothing short of performance on time is a discharge.19 Time may be expressly made of the essence, or it may be construed as such when time is a material object of the contract. Thus, in McClellan v. Coffin,20 a contract was made to "furnish the work within three years, or the note to be void." It was held that time was material, and that the failure of the party to finish the work within the time specified relieved the other party. Of course, the provision may be waived. But in the absence of assent by the other party, performance after the time fixed does not discharge the contract.21

Not

only as to the day, but as to the hour, may the parties agree that time shall be of the essence.22

At common law, time was always of the essence. But courts of equity, by their own rules, and by their influence on the principles of the courts of law, have softened the iron-bound rule. The intention of the parties is determined to learn whether performance actually depended on a day certain, or whether a time was merely set to secure performance within a reasonable time. Generally, however, time is of the essence in mercantile contracts;23 but in land contracts, as well as for services, and building construction, generally time is not of the essence.24 The parties may, however, as stated, make time of the essence, and both law and equity will then enforce the provision.

A contract to be performed "as soon as possible," "when convenient," etc., requires performance within a reasonable time.25 In computing time, as where performance must take place within ten days after date, the date of execution is excluded.26 Similarly, performance on a day certain permits the whole of that day in which to perform.27

178. Instalment contracts. Wherever there is a contract for delivery by instalments, and no time is fixed, payment is to be made upon each delivery,28

22 Shinn v. Roberts, 20 N. J. L. 435.

23 Norrington v. Wright, 115 U. S. 188.

24 Cleveland Rolling Mill v. Rhodes, 121 U. S. 255; Derrett v. Bowman, 61 Md. 526.

25 Florence Gas, etc., Co. v. Hanby, 101 Ala. 15.

26 Shelton v. Gillet, 79 Mich. 173.

27 Massie v. Belford, 68 Ill. 290.

28 Withers v. Reynolds, 2 B. & A. 882 (Eng.).

for the law will imply concurrent conditions wherever possible.

But where a lump sum is mentioned and no time is fixed, the payment and last instalment would be concurrent. All of the preceding instalments would be independent. If the seller of a piece of property waits until all instalments are due, he must tender the deed to the buyer, because then it is possible to make the conditions concurrent. At any time, however, up to the time when the third payment is due, he can sue for the second instalment without tendering the deed.

The general American rule excuses further performance of a divisible contract where the breach has gone to the essence. The tendency is to hold that non-performance of one instalment will justify a refusal to proceed with the rest of the contract. A agreed to deliver to B 600 tons of iron during three months in equal portions to-wit: 200 in June, 200 in July and 200 in August. A actually delivered 20 tons in June and 21 tons in July. Here there is a contract for instalments which themselves are split into units. In the United States, each instalment is regarded as a unit, and if it is not fully performed, it is a breach in limine.29 But English courts regard this as a breach after part performance, and consequently no excuse for non-performance by the other party.30

Defective quality does not generally seem to excuse future performance of accepting the remaining in

29 Rugg v. Moore, 110 Pa. St. 236; Williston, Sales (2d ed.), § 467. 30 Freeth v. Burr, L. R. 9 C. P. 208 (Eng.).