promises as one of interpretation. It was not easy for the courts at the end of the eighteenth century to renounce altogether the previously accepted view that unless a covenant or promise was conditional it must be enforced irrespective of the plaintiff's default. It was easier to achieve the desired result by finding conditions even though none were in terms stated. Accordingly, to Serjeant Williams, and to the judges long after his time, the change in the law effected by Lord Mansfield was regarded as simply an increased liberality of construction. That there was an increased liberality of construction need not be denied; and the importance of a fair construction of a contract which shall give effect to the intention of the parties not only as it may be expressed in words, but as it may be inferred from the whole contract as applied to the matter in hand, is obvious. But however liberal construction may be, all the situations which may arise where one party is guilty of a breach of contract, or threatens one, cannot be satisfactorily disposed of by reference to the intention of the parties.32

§ 824. Intent of the parties controls if expressed.

It is a commonplace of the decisions that whether promises are dependent upon one another is determined by the intent of the parties.33 No doubt where the parties express an

22 In Bradford v. Williams, L. R. 7 Exch. 259, 261, Martin, B., said: "I think the words 'condition precedent' unfortunate. The real question, apart from all technical expressions, is, what in each instance is the substance of the contract."

"In Loud v. Pomona Land, etc., Co., 153 U. S. 564, 38 L. Ed. 822, 14 Sup. Ct. 928, the court said: "If parties think proper, they may agree that the right of one to maintain an action against the other shall be conditioned or dependent upon the plaintiff's performance of covenants entered into on his part. On the other hand, they may agree that the performance by one shall be a condition precedent to

the performance by the other. The question in each case is, which intent is disclosed by the language employed in the contract?" To the same effect Parke, B., said: Graves v. Legg, 9 Exch. 709: "The general rule is to construe covenants and agreements to be dependent or independent according to the intent and meaning of the parties to be collected from the instrument." See also Roberts v. Brett, 11 H. L. C. 337; Seeger v. Duthie, 29 L. J. C. P. 253, 30 ibid. 65; Bettini v. Gye, 1 Q. B. D. 183; Pollak v. Brush Elec. Assoc., 128 U. S. 446, 455, 32 L. Ed. 474, 9 Sup. Ct. 119; Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975; McCormick v. Badham, 191 Ala. 339,

intention, that intention will govern. "Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one; or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent, is not really vital, and may be compensated for in damages, and if they sufficiently expressed such an intention, it will not be a condition precedent." 34

§ 825. Fictitiously imputed intentions.

The troublesome case is where they have expressed no intention, and this case is very common. Parties do in their contracts ordinarily express an intention as to what things shall be done by each party, but they very commonly express no intention whatever as to whether the obligation of one party shall be dependent on performance by the other. Frequently they even say nothing indicating the order of time in which performances are to take place. To say in such a case that the dependency of a promise is to be determined by the intention of the parties is open to several objections. In the first place it is an obvious fiction.35 It is better to state

67 So. 609; Hewitt v. Berryman, 5 Dana, 162; Con P. Curran Printing Co. v. St. Louis, 213 Mo. 22, 111 S. W. 812; Grant v. Johnson, 5 N. Y. 247, 255; Glenn v. Rossler, 156 N. Y. 161, 50 N. E. 785; Rosenthal Paper Co. v. National &c. Paper Co., 226 N. Y. 313, 123 N. E. 766, 175 N. Y. App. D. 606, 162 N. Y. S. 814; Oliver v. Oregon Sugar Co., 42 Oreg. 276, 70 Pac. 902; Ink v. Rohrig, 23 S. Dak. 548, 122 N. W. 594; National Cable & Mfg. Co. v. Filbert, 31 S. D. 244, 140 N. W. 741; Toellner v. McGinnis, 55 Wash. 430, 104 Pac. 641, 24 L. R. A. (N. S.) 1082. 34 Per Blackburn, J., in Bettini v. Gye, 1 Q. B. D. 183.

35 This is sometimes recognized by the courts. E. g., Blackburn, J., in Bettini v. Gye, 1 Q. B. D. 183, 188, relying on language of Parke, B., in Graves v.

Legg, 9 Exch. 709, said: "But there is no such declaration of the intention of the parties either way. And in the absence of such an express declaration, we think that we are to look to the whole contract, and applying the rule stated by Parke, B., to be acknowledged, see whether the particular stipulation goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different in substance from what the defendant has stipulated for; or whether it merely partially affects it and may be compensated for in damages. Accordingly as it is one or the other, we think it must be taken to be or not to be intended to be a condition precedent." Professor Langdell clearly recognized the fictitious character of

the law in terms of reality, for misapprehension is sure to be caused by fiction. Thus it is not infrequently argued by courts as a reason for holding promises independent that if the parties had wished to make them conditional they could easily have said so.3 36

This argument, however, is destructive of the whole theory of conditions implied in law. It assumes that whenever dependency is not stated in terms it is purposely left out. On this assumption the law would logically revert to the position it held prior to Lord Mansfield's time, that unless expressly conditional all promises are absolute and independent; whereas the presumption in bilateral agreements unless some reason can be shown to the contrary, is that the promises are dependent. The truth is, if the intention of the parties is to be brought into the doctrine of conditions implied in law in most cases, it can only be an intention which the court assumes the parties would have had if they had considered the matter, and had made some provision regarding it. The only justification for such an assumption is the fairness of dependency, as compared with independency, of promises in bilateral contracts, and this being so it is better to drop any talk about intention of the parties where they express none and rest doctrines of implied dependency solely on their fairness-a quite sufficient basis.

the intention attributed to the parties. Indeed he says: "Conditions which are founded upon an actual intention may be termed express conditions; those which are founded upon an imputed intention may be termed implied conditions."

See for example, Fearon v. Aylesford, 12 Q. B. D. 539, 549.

Bank of Columbia v. Hagner, 1 Pet. 455, 464, 7 L. Ed. 219. "In contracts of this description, the undertakings of the respective parties are always considered dependent unless a contrary intention clearly appears. A different construction would in many cases lead to the greatest injustice, and a purchaser might have payment of the consideration money

enforced upon him, and yet be disabled from procuring the property, for which he paid it. Although many nice distinctions are to be found in books, upon the question, whether the covenants or promises of the respective parties to the contract, are to be considered independent, or dependent; yet it is evident, the inclination of courts has strongly favored the latter construction, as being obviously the most just. The seller ought not to be compelled to part with his property without receiving the consideration; nor the purchaser to part with his money, without an equivalent in return." See also McCormick v. Badham, 191 Ala. 339, 67 So. 609; World's Fair Min. Co. v. Powers, 12 Ariz. 285,

§ 826. Intention must relate to the time of the formation of the contract.

A more serious objection to reducing the whole question of dependency to an imputed intention is that intention real or fictitious must relate to the time when the contract was entered into. Properly to adjust the rights of the parties in the mutual performance of bilateral contracts demands that the situation should be examined in the light of the events which subsequently take place whether foreseen or foreseeable at the formation of the contract or not. 38 Seeking the intention of the parties as the sole governing principle led Serjeant Williams to declare a promise independent if one performance or part of it might by the terms of the contract under some circumstances precede performance of the counter promise; and a few unjust decisions have been made in consequence.

39

The proper point of view is indicated in Poussard v. Spiers,11 where the court left to the jury the question whether the plaintiff's failure to perform was of material consequence, and whether, under the circumstances, it was reasonable to refuse further performance from the plaintiff. The difficulty of reconciling such an attitude with the view that the matter depends upon the construction of the parties is indicated by the remark in an earlier case, 42 of Pollock, C. B.: "It is remarkable that according to this rule the construction of the instrument may be varied by matter ex post facto." Such a rule of construction is wholly inadmissible, as has been pointed out in a later decision by the House of Lords. 43 But if it is once understood that another question besides that of con

42 Ellen v. Topp, 6 Exch. 424.

43 Wallis v. Pratt, A. C. 394, 400. Lord Shaw there said of this expression "whoever heard in a commercial contract of construing the meaning of two business men by a principle of that kind. . . . I think it is a safer thing to construe this document as it was originally meant to be construedthat is to say, according to the evident intention of the contracting parties at the time the bargain was made." Where the question is properly one of

struction is involved, Pollock's statement is in substance not only explicable but sound, though the form of it is open to criticism.

§ 827. Implied conditions if based on intention must be given strict effect.

If the intention of the parties were the only principle controlling the matter under discussion, and the rights of the parties were, therefore, based wholly on a construction of the contract, promises which were held impliedly conditional would necessarily be dealt with in the same way as promises which are expressly conditional. The court could only say of an implied as of an express condition: "As the parties have made this a conditional contract, we are not to inquire into its materiality." 44 Even after part performance by the plaintiff a slight breach of condition would excuse the defendant if the law governing so-called implied conditions is based wholly on the assumption that the parties intended the defendant's obligation to be conditional on prior performance by the plaintiff.45 Such a point of view promotes a technical determination of cases. Because the enforcement of conditions frequently leads to forfeitures and penalties courts have always been indisposed to construe contracts as conditional,

construction, as it was in Wallis v. Pratt, Lord Shaw's criticism is sound. See also Behn v. Burness, 3 B. & S. 751.

44 Banco De Sonora v. Bankers', etc., Co., 124 Ia. 576, 583, 100 N. W. 532, 104 Am. St. Rep. 367. See also per Tindal, C. J., in Stavers v. Curling, 3 Bing. N. C. 355.

45 It is for this reason that courts have sometimes been reluctant to imply conditions. Thus in Boone v. Eyre, 1 Hen. Bl. 273, n., Lord Mansfield said of a breach in failing to transfer a good title to the slaves on a plantation "if this plea were to be allowed, any one negro not being the property of the plaintiff would bar the action." And in Jonassohn v. Young,

4 B. & S. 296, Crompton, J., said, of an alleged breach of promise by the defendant in supplying inferior coal and detaining the vessel sent for it: "The argument for the defendant must go this length, that the supply of one chaldron of coal of an inferior quality, or the unnecessary detention of the defendant's vessel for one hour, would entitle him to put an end to the contract." The same argument is put forward by Best, J., in Winstone v. Linn, 1 B. & C. 460; by Dallas, C. J., in Fothergill v. Walton, 8 Taunt. 576; by Littledale and Coleridge, JJ., in Franklin v. Miller, 4 A. & E. 599; and in Petersburg Fire Brick & Tile Co. v. American Clay M. Co., 89 Ohio, 365, 106 N. E. 33, 36.