lord must prove a strong case to get the benefit of his objection. (q)

§ 952. In Gordon v. Smart, (r) where a contract to grant a building lease had been entered into, and the plaintiff, claiming under this contract, had erected a brewhouse on part of the ground, which, it was contended, would be an injury to the adjoining property of the lessor; this was argued, but unsuccessfully, to be a reason for refusing specific performance, Leach, V. C., saying that it was not necessarily a nuisance: he left open the question whether, if it had in itself been a nuisance, that would have been a defense in such a suit.

§ 953. It seems that under the Irish tenantry acts, and perhaps even independently of them, the breach by the tenant of covenants in the lease will not be a bar to specific performance of a covenant for renewal. (s) Certainly they will not so operate unless they be gross and perhaps also willful.(t)

3. Where specific performance was granted and the question of breach of covenants left for decision at law.

§ 954. Where the Court of Chancery found such a conflict of evidence as left it in doubt whether there had been such a breach of covenant as to render it proper and expedient to refuse specific performance on that ground, it took the course of directing the lease to bear the date of the contract, or a date anterior to the alleged breaches, and required from the plaintiff an undertaking to admit in any action which might be brought under such lease for the recovery of the demised property, or upon any breaches of covenant to be contained in such lease, that such lease was executed on the the day on which it should bear date.

§ 955. This practice was first introduced by the case of Pain v. Coombs :(u) it was followed by the Court of Appeals in Lillie v. Legh :(v) it was discussed, adopted and approved · in Rankin v. Lay, (20) and had thus become the wellestablished practice of the Court of Chancery.

(q) Mundy v. Jolliffe, 5 My. & Cr., 167, 177. (r) 18 & 8. 66.

(8) Trant v. Dwyer, 2 Bli. N. 8, 11. Thompson v. Guyon, 5 Sim., 65; supra, § (t) Hare v. Burges, 5 W. R., 585.

See

(u) 1 De G. & J., 34 (S. C. before Stuart V. C., 3 Sm. & G.; 449).

(v) 3 De G. & J., 204 Cf. Powell v. Lovegrove, 8 De G. M. & G at p. 365.

(w) 2 De G. F & J. 65. See too Poyntz v. Fortune, 27 Beav., 393; Brown v. Marquis of Sligo, 10 Ir. Ch. R., 1; Cartan v. Bury, id, 387.

§ 956. It would be presumptuous to inquire whether the court did wisely in directing deeds to bear false dates, (x) or in requiring persons to admit as a fact that which was not a fact. But it may be allowable to rejoice in the expectation that, under the improved judicature now in existance, no such decrees as those last referred to will be made. The high court will probably decide the whole case at

once.

§ 957. Other cases have arisen which illustrate the general principle, in cases not arising out of contracts for leases.

Where an estate was sold upon the condition, amongst others, that immediate possession should be given, and in course of disputes which subsequently arose about the title, the vendors tendered the purchaser his deposit, demanded back possession, drove the purchaser's stock off the estate, and gave notice to the tenants not to pay the rent to him,— this was conduct inconsistent with the condition of the sale, and was held to operate as a bar to specific performance at the suit of the vendors. (y)

§ 958. In another case it was thought by Lord Cranworth doubtful whether a bill could be maintained for the specific performance of an award after the plaintiff had taken proceedings to set it aside. (2)

§ 959. Where a vendor has given notice of his intention to resell under the contract, it was held that he had precluded himself from afterwards seeking for specific performance. (a)

§ 960. Again, a railway company cannot first enter into a contract for the purchase of land, then take proceedings under their compulsory powers in a way which assumes that there is no subsisting contract, and then fall back upon and seek to enforce the original contract. (b)

§ 961. Still it is not every breach of good faith which will prove a bar. Where the plaintiff has been guilty of small breaches of good faith, for which the defendant had a remedy in his own hands, and where, if the interference of the court were refused, the plaintiff would be without any

(x) The fraudulent making of a deed with a false date is, or may be, forgery. Reg. v. Ritson, L. R., 1 C. C. R., 200

(y) Knatchbull v. Grueber, 1 Mad., 153; S. C. Mer. 124.

(2) Blackett v. Bates, L. R. 1 Ch., 117; reversing S. C. 2 H. & M., 270.

(a) Bovou v. Paul, 28 L. J. Ch., 555.

b) Bedford and Cambridge Railway Co. v. Stanley, 2 J. & H. 746.

adequate remedy, such breaches of good faith have been held not to be a bar to relief, though they affect the costs. (c)'

(c) Holmes v. Eastern Counties Railway Co., 3 Jur. N. S., 737; cf. Besant v. Wood, 12 Ch. D., 605.

1 Tender, in cases where specific performance is demanded] In order that an action may be sustained by the vendor he must show that he has made a tender of a good title and an offer to fulfill the conditions on his part. Hodges, ex parte, 24 Ark., 197; Mix v. Beach, 46 Ill., 113; McHugh v. Wells, 39 Mich., 175; Sowle v. Holdridge, 63 Ind., 213 Before a conveyance can legally be required, the vendee must make a good tender of the purchase money. Huff v. Jennings, Morris (Iowa), 454; Heuer v. Rotkowski, 18 Mo., 216; Beebe v. Dowd, 22 Barb., 255; Goodale v. West, 5 Col., 339; Bearden v. Wood, 1 A. K. Marsh., 450; Greenup v. Strong, 1 Bibb., 590; McComas v. Earley, 21 Gratt., 29; Iwin v. Blakesley, 67 Pa. St., 24; Bislinger v. Kitts, 6 Barb., 273; Tanner v. Peck, 1 Barb.'s Ch., 549; Lansing v. Thompkins, 45 Barb., 308; Chase v. Hogan 3 Abb. Pr. (N. S), 59. A tender of the purchase money must not only be made, but it must be kept good, in order to stop the running of interest. 'The vendee must not use the money for other purposes. Bissell v. Heyward, 6 Otto., 580. When the purchase money was tendered, the estate was worth more than the price agreed upon, and the vendor refused to convey. After waiting until the value had considerably depreciated he sought the aid of equity to compel specific performance. Held, that he could not obtain it. Tobey v. Foreman. 79 Ill., 489. The plaintiff, in an action for specific performance, showed no offer of compliance with his part of the agreement, and no excuse therefor, for a period of twenty-one or twenty-two months. Held, that he was not entitled to a decree. Green v. Covilland, 10 Cal., 317.

Examples of sufficient tender.] As to U. S Treasury notes, see Davis v. Parker, 14 Allen, 94. Where money is payable in installments, see Rogers v. Taylor, 40 Iowa, 193; Blackner v. Phillips, 67 N. C, 340. There was an allegation that a tender of payment had repeatedly been made, and that the plaintiff had at all times been and still was ready and willing to pay. Held, that the tender should have been stated with greater particularity. Duff v. Fisher, 15 Cal., 375; Hart v. McClellan, 41 Ala., 251. In Englander v Rogers, 41 Cal., 420, the allegation of tender by the plaintiff was as follows: that he has been ready and willing during all the time aforesaid, and has offered to accept and take said conveyance, pursuant to said agreement, and to pay the balance of said purchase money.' This was held not sufficient. "To constitute a valid tender in such a case, the party must have the money at land, immediately under his control, and must then and there not only be ready and willing, but produce and offer to pay it to the other party on the performance by him of the requisite conditions." Crockett, J. See, also, Strong v. Blake, 46 Barb., 227. Where there has been a tender of the purchase money, and a refusal to convey, it need not be shown that the tender was kept good. Allen v. Atkinson, 21 Mich., 351; King v. Ruckman, 21 N. J. Eq., 599; McDonald v. Kimbrell, 3 Iowa, 335.

CHAPTER XXII.

OF NON-PERFORMANCE OF CONDITIONS.

§ 962. A contract may be originally conditional, and contingent upon the performance of some act or the happening of some event. Where that has occurred, the contract becomes absolute, and rests on the same footing for all purposes as if it had been originally made positively and without reference to any contingency. (a) But until it has thus become absolute, no person can be entitled to call for its performance. (b) Where, therefore, the contract is in its origin conditional, it may afford a ground of defense that the condition has not been performed.'

(a) Per Lord Romilly, M. R.. in Regent's Canal Co. v. Ware, 23 Beav., 586

(b) Scott v. Corporation of Liverpool, 1

Giff, 216; 3 De G. & J., 334; Cf. Abbott v.
Blair, 8 W R, 672; Douglas v. Sidmouth
Railway and Harbor Co., 14 W. R. 361.

Where A. signs an agreement to do certain acts, on the performance of certain conditions precedent by B., and B. performs those conditions, equity will compel a specific performance of the agreement by A. Lanning v. Cole, 3 Green's Ch., 229. But a party so seeking to obtain the benefit of a conditional agreement must show not only that he accepted the offer made. but also that he faithfully performed the condition. Dilly v. Barnard, 8 Gill. & J., 170. And, therefore, at law, where one party covenants to give a deed on a certain day, and the other covenants to pay money on the same day, neither can maintain an action against the other, until he has performed or tendered performance on his part Green v. Reynolds, 2 John., 207; Jones v. Gardiner, 10 id., 266: Hardin v Kreitsinger, 17 id, 293; Robb v. Montgomery, 20 id., 15; Gazely v. Price, 16 id., 267; Robertson v. Robertson, 3 Rand, 68; Northrup v. Northrup, 6 Cow., 296: Meriwether v. Carr, 1 Blackf., 413; Bailey v. Clay, 4 Rand., 346; see Gibbs v. Champion, 3 Ham., 335. And in equity, where one contracts for a lease, upon certain stipulations to be performed by him, and enters upon the lands, but fails to perform such stipulations, he cannot compel the other party to the contract, or his assignee, to make a lease to him. Jones v. Roberts, 6 Call, 187; Harvie v. Banks, 1 Rand., 408. Chancery never relieves against the breach of conditions precedent, although it may against conditions subsequent. The reason of this is obvious. In cases of conditions precedent no estate can vest until the condition be performed; and, therefore, any claim for relief must be without foundation But in cases of conditions subsequent, the estate, or interest, vests in the first instance, subject to be divested on non-performance or breach of the condition. Wells v. Smith, 2 Edw.'s Ch., 78; Chipman v. Thompson, Walk 's Ch., 405; Preston's Leg., 103, ch. 5. Therefore, a corporation will not be permitted to enforce payment of stock, for which its agents obtained subscriptions, on conditions with which it refuses to comply. Turnpike Co. v. Churchill, 6 Monr., 427. But where there has been a breach of a condition subsequent, and compensation can be made, a court of equity will grant relief. Walker v. Wheeler, 2 Conn., 299; De Forrest v. Bates, 1 Edw.'s Ch., 394; Chipman v. Thompson, Walk.'s Ch., 405. And, in accordance with this principle, it has been held that, where by the terms of a lease, it is to cease and determine upon a breach of any of the covenants therein, and, by a clause in the lease, it is provided that the lessor may re-enter

§ 963. A case before Lord Romilly, M. R., may be cited as an illustration of this obvious principle. The defendants agreed to take a lease of a public house from the plaintiff, provided the retail license was obtained, and the plaintiff agreed to use his utmost efforts to obtain this license. The defendant entered into possession to qualify himself as a publican for the license and obtained a license from the justices, but under compulsion of the justices and threat of refusal, he gave to the justices a verbal promise that no excisable liquor should be sold for consumption on the premises. It was held that the condition was not performed and specific performance was refused. (c)

§ 964. A contract may be conditional either by express words of condition, or because the court, upon a consideration of its terms, gathers that to have been the intention of the contracting parties. This is, of course, a question to be decided on the terms of each contract. It will, therefore, be sufficient briefly to allude to two or three cases of practical moment.

§ 965. In the care of contracts by railway companies, the question has sometimes arisen how far they are conditional on the formation of the railway. In one case, where a company before incorporation contracted with a landowner, the contract provided for a bridge over the railway, a certain deviation of the line, and other works entirely dependent on its formation, and also for the payment of £4,500 as purchase money for certain lands to be taken by the company, and for consequential damages to the landowner's estate. The contract was expressly conditional on the act passing. It passed but the railway was abandoned, and the time for

(c) Modlen v. Snowball, 29 Beav., 641, affirmed 31 L. J. Ch., 44; 10 W. R., 24.

for a breach of the same covenants, the lease is voidable only upon such a breach, and not void. (Walworth, Ch.) Stuyvesant v. Davis, 9 Paige, 427. To create a condition precedent or subsequent no precise technical words are required. The construction must always be found upon the intention of the parties. If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may be as well done after as before the vesting of the estate, or, if from the nature of the act to be performed, and the time required for its performance, it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act, after taking possession, then the condition is subsequent. Underhill v. Saratoga and Washington R. R. Co.. 20 Barb., 455. Therefore, a conveyance to a railroad corporation upon the express condition that the company should construct its railroad within the time prescribed by the act of incorporation, is a grant upon a condition subsequent, and not precedent. Nicoll v. New York and Erie R. R. Co, 2 Kernan (Ñ. Y ), 121.