in damages. It may be difficult to fix upon any actual damage because it must be assumed that if the valuers had acted properly, they would have fixed a valuation identical with the market value or real value of the property. Presumably for this reason it has even been said that if a party to the contract was the cause of a valuer's failure to act, the other party is without redress, but there seems to be a clear breach of contract in such a case.89 Specific performance will not be given of such a contract.90 This is in accordance with the general principle of equity denying specific performance to all kinds of agreements for arbitration." The case may be further supposed, however, that possession without title or that title without possession has passed to the buyer, and that subsequently he wrongfully fails to perform, or prevents performance, so that the valuation cannot take place. In such a case the seller not only can maintain suit for damages, but is entitled to any other appropriate remedies allowed to an unpaid seller.92 If neither the property nor possession has passed to the buyer, the seller can generally maintain only an action for damages,93 with a possible exception that if the goods could not readily be resold for a reasonable price, the seller might be allowed to treat the goods as the buyer's and sue for a reasonable price.94 In insurance policies an appraisement or valuation of the injury is frequently made a condition precedent to any right of action. This condition may, however, be excused by the misconduct of the company or its appraiser.95 It will be noticed

Elberton Hardware Co. v. Hawes, 122 Ga. 858, 865, 50 S. E. 964; Stern v. Farah, 17 N. Mex. 516, 133 Pac. 400. 89 See Humaston v. Telegraph Co., 20 Wall. 20, 22 L. Ed. 279; Uniform Sales Act, § 10; Williston on Sales, 173.

Vickers v. Vickers, L. R. 4 Eq. 529; Wilks v. Davis, 3 Meriv. 507; Milnes v. Gery, 14 Ves. 400; Humaston v. Telegraph Co., 20 Wall. 20, 22 L. Ed. 279; Davila v. United Fruit Co., 88 N. J. Eq. 602, 103 Atl. 519.

91 See infra, § 1421.

92 As to the nature of these remedies, see Williston on Sales, §§ 501-593.

93 As to the exceptional cases where equity specifically enforces an agreement for arbitration or valuation, see infra, § 1421, n.

94 See Uniform Sales Act, § 63 (3), and infra, § 1365.

95 In Brock v. The Dwelling-House Ins. Co., 102 Mich. 583, 61 N. W. 67, 26 L. R. A. 623, it was held this condition was excused by the unreasonable action of the appraiser appointed by the company. The court said (p. 593): "It is well settled that where the conduct of the company's appraiser in refusing to agree on an umpire is inexcusable, and virtually

that the situation in such a case is analogous to that in a sale where title to the goods has passed and they have been used by the buyer. The insurance contract has become binding by the performance of the consideration on the part of the insured; that is, by the payment of the premium; and the loss having taken place, it is impossible to remit the parties to their original position. The plaintiff is, therefore, entitled to recover the amount of his loss as estimated by a jury.

§ 804. Promises to pay when able.

Analogous to the cases which have been considered, and to promises performable if the promisor is satisfied with the promisee's performance, are promises to pay money when the promisor is able to do so. Is such a promise to be construed as meaning when the promisor reasonably ought to be able to pay, as some courts have construed a condition of satisfaction to mean reasonable satisfaction," or is there an implied obligation to use reasonable efforts to become able; or, on the other hand, may it be said that what the promisor "might, could, or should have done," is not in question? 98 Most courts have been disposed to take this view.99

Some courts, however, either construe the promise to mean

amounts to a refusal to proceed with the appraisement, the fact that the appraisement was not concluded before suit brought will not bar an action on the policy." McCullough v. Insurance Co., 113 Mo. 606, 21 S. W. 207; Bishop v. Insurance Co., 130 N. Y. 488, 29 N. E. 844; Uhrig v. Insurance Co., 101 N. Y. 362, 4 N. E. 745; Bradshaw v. Insurance Co., 137 N. Y. 137, 32 N. E. 1055. Compare Cooper v. Shuttleworth, 25 L. J. Ex. 114.

96 See supra, § 44.

97 Ibid.

98 Work v. Beach, 13 N. Y. S. 678.

99 Cole v. Saxby, 3 Esp. 159; Davies v. Smith, 4 Esp. 36; Tell City Co. v. Nees, 63 Ind. 245; Stainton v. Brown, 6 Dana, 248; Eckler v. Galbraith, 12 Bush, 71; Denney v. Wheelwright, 60

Miss. 733; Everson v. Carpenter, 17 Wend. 419; Re Knab, 78 N. Y. S. 292, 38 N. Y. Misc. 717; Nelson v. Bonnhorst, 29 Pa. 352; Salinas v. Wright, 11 Tex. 572. In Work v. Beach, 13 N. Y. S. 678, the defendant had promised to pay about $15,000 "when able." Three years afterwards action was brought, and it was proved that during the interval the defendant had received a salary of $15,000 a year, out of which he saved nothing. The court held the defendant not liable.

It is interesting to compare this decision with the New York cases holding that a condition requiring satisfaction is met by showing that the promisor reasonably ought to have been satisfied. See supra,

§ 44.

a promise to pay in a reasonable time, or imply an obligation to use reasonable means to become able.1

There is no doubt that a promise to pay when able if it does not create liability earlier, becomes enforceable when the ability exists; 2 and when once the condition has happened, and the promisor thus becomes liable to pay, his subsequent inability will not excuse him.3 The principle that prevention of the happening of the condition excuses the promisee from proving that it has happened, must apply to cases of this sort as well as to conditions generally. Therefore, if it can be said that one who promises to pay when able has prevented himself from becoming able, the happening of the condition will be excused. What should be considered as prevention is a more troublesome question. Any expenditures made for the very purpose of remaining unable would certainly fall within the category. It is perhaps not going too far to say further that the parties though presumably contemplating a continuance of expenditure commensurate with the promisor's station in life and past method of living, do not contemplate expenditure beyond that, and such expenditure will, therefore, amount to prevention of performance of the condition.

§805. Substantial performance.

In many jurisdictions it is held that even though an express condition is not complied with, a plaintiff who has substantially performed may recover the contract price promised for his performance, less whatever amount may be necessary to compensate the defendant for failure to comply with the condition qualifying his obligation. This is not an application of the principle de minimis non curat lex. Nowhere would a

1 Nunez v. Dautel, 19 Wall. 560, 22 L. Ed. 161; Starr Piano Co. v. Baker, 8 Ala. App. 449, 62 So. 549; Works v. Hershey, 35 Ia. 340; Kinkaid v. Higgins, 1 Bibb, 396; DeWolff . French, 51 Me. 420; Crooker v. Holmes, 65 Me. 195, 20 Am. Rep. 687; Lewis v. Tipton, 10 Oh. St. 88, 75 Am. Dec. 498; Noland v. Bull, 24 Oreg. 479, 33 Pac. 983. In Smithers v. Junker, 41 Fed. 101, a note "payable

at my convenience and upon this express condition that I am to be the sole judge of such convenience and time of payment," was held payable after a reasonable time.

2 Flather v. Economy Slugging Machine Co., 71 N. H. 398, 52 Atl. 454, and see cases supra, n. 99.

Denney v. Wheelwright, 60 Miss. 733, 744.

departure from full performance of a condition be regarded as important if the departure were an inconsiderable trifle having no pecuniary importance. But the principle in question recognizes that the plaintiff's departure from full performance has been of such pecuniary consequence that the injury to the defendant must be deducted.4 This doctrine seems to have been adopted from the rule governing dependent promises where no express condition qualifies the promise of the defendant, and his only excuse is the failure of the plaintiff to perform his promise. In such a case if the plaintiff has substantially performed, the defendant is liable.

to the expressed intention of the parties as the defendant has not made his promise conditional on the plaintiff's performance, and any excuse he may have is given him by the law rather than from his own bargain. The obvious reason for enforcing the defendant's promise (where that is done) in spite of the plaintiff's failure to comply with an express condition is to avoid the forfeiture of the plaintiff's labor and materials which would be caused by a strict enforcement of the condition."