unless the language is too clear to be mistaken; 46 and have frequently disregarded plainly expressed conditions, because of their unwillingness to deprive a promisee of all rights on account of some trivial breach of condition. But the theory of mutual dependency of the promises in a bilateral contract is based on fundamental principles of justice, and if the court conceives of its action in enforcing such dependency as due not to the will of the parties but to the inherent justice of the situation, there is no difficulty in so applying and molding the principle of failure of consideration as to protect the defendant without subjecting the plaintiff to the risk of unjust forfeiture. Therefore promises will be mutually dependent whenever it is possible to 48 Antonelle v. Lumber Co., 140 Cal. 309, 315, "Assuming that the stipulation was a condition precedent, it is well settled that such conditions are not favored by the law, and are to be strictly construed against one seeking to avail himself of them. (Front Street R. R. Co. v. Butler, 50 Cal. 574, 577; Deacon v. Blodget, 111 Cal. 416, 418.) More particularly does this follow, when a strict construction of such condition would work a forfeiture; a result which the law will always endeavor to prevent." It is for this reason that in Newson v. Smythies, 3 H. & N. 840, Pollock, C. B., says: "It is a general rule that covenants are to be treated as independent, rather then as conditions precedent, especially where some benefit has been derived by the covenantor." 47 In Telfener v. Russ, 162 U. S. 170, 180, 40 L. Ed. 930, 16 Sup. Ct. Rep 695, the court said:-"In Bank of Columbia v. Hagner, 1 Pet. 455, 464, 7 L. Ed. 219, this court, speaking by Mr. Justice Thompson of the distinctions made in covenants or promises of parties to a contract for the purchase and sale of real property, whether they were to be considered as independent or dependent, said: 'It is evident that the inclination of courts has strongly regarded as do so.47 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. Hence in such cases, if either a vendor or vendee wish to compel the other to fulfill his contract, he must make his part of the agreement precedent, and cannot proceed against the other without an actual performance of the agreement on his part, or a tender and refusal. And an averment to that effect is always made in the declaration upon the contracts containing dependent undertakings, and that averment must be supported by proof."" In Stockstill v. Byrd, 132 La. 403, 61 So. 446, 447, the court said: "The courts at the present day incline strongly against the construction of promises as independent; and, in the absence of clear language to the contrary, promises which form the consideration for each other will be held to be concurrent or dependent, and not independent, so that a failure of one party to perform will discharge the other, and so that one cannot maintain an action against the other without § 828. Promises called absolute are generally not strictly so. Promises when not held conditional are said to be independent and absolute; and so long as the only principles governing the matter are those of construction based on the real or supposed intention of the parties, no other conclusion is possible. In fact, however, no promise in a bilateral contract the performance of which on one side is agreed upon as the equivalent exchange for performance on the other side, is wholly independent. Though performance of one promise may be due first, it is still true that the later performance is the agreed exchange, and if the court is satisfied that the agreed exchange will not be forthcoming, the first performance is excused. 4 Moreover, if suit is not brought for the first performance until after the second is due, tender of the second performance may become a condition of liability for the prior performance.49 It is indeed possible to say, and some courts do say, that it is an implied condition of A's promise that B shall remain apparently able and willing to perform his promise when the time comes. This is of course inconsistent with any assertion that A's promise is independent. Moreover, it surely is evident that when such a statement is made, the court is not seeking the intention of the parties, or applying any ordinary rules of interpretation or construction. It is dealing with an unexpected situation for which the contract makes no provision in the way most conformable with justice. As this is the fact it is better to say so. While fiction may have been necessary to aid the law in taking a step forward, when the step has been taken the fiction should be discarded; for otherwise it is liable to be treated as fact instead of fiction, and made the basis of reasoning by analogy to wrong results. § 829. Order of time of performances. Undoubtedly the most important element in determining the liability of one party to a bilateral contract when the other party has not performed, is the relative order of performances showing the performance or tender of performance on his part." See to similar effect Phillips &c. Const. Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341; McCormick v. Badham, 191 Ala. 48 See infra, §§ 875 et seq. fixed by the contract. Assuming that two performances are intended as equivalent exchanges for one another, in view of business customs, the intention is fairly inferable that the relative order which is fixed by the contract must be observed. In a contract of service, for instance, a real intention may doubtless be inferred that the service shall be rendered before the promised payment is made. In the Civil Law the plaintiff's own breach of contract is regarded as a dilatory defence, and in the Common Law also the same situation must generally at least give rise to the same results; that is, the party whose performance is due subsequently is not necessarily excused permanently by delayed performance on the other side; but he is excused temporarily until the prior performance has been rendered. But it should be observed that what was originally in effect a dilatory defence becomes an absolute one when so long a period of time has elapsed as to make a substantial breach.50 Where, however, 50 In McCormick v. Badham, 191 Ala. 339, 67 So. 609, the court said, "The parties 'must be held to have intended the performance of their respective acts, in the order of time indicated by their covenants.' Nesbitt v. McGehee, 26 Ala. 748. The precedency of covenants 'must,' as said by Lord Mansfield in his quotation in Nesbitt v. McGehee, 'depend on the order of time in which the intent of the transaction requires their performance.' 666 'Where a specified thing is to be done by one party as the consideration of the thing to be done by the other, it is undeniably the general rule that the covenants are mutual, and are dependent, if they are to be performed at the same time: and if, by the terms or nature of the contract, one is first to be performed as the condition of the obligation of the other, that which is first to be performed must be done, or tendered, before that party can sustain a suit against the other.' Phillips Const. Co. v. Seymour, 91 U. S. 646, 650, 23 L. Ed. 341; Loud v. Pomona the Land Co., 153 U. S. 564, 14 Sup. Ct. Rep. 928, 38 L. Ed. 822." In Southern Pacific R. Co. v. Allen, 112 Cal. 455, 461, 44 Pac. 796, the court said: "The case is, therefore, strictly within the well-established rule that, 'if a day be appointed for payment of money, or a part of it, or for doing any other act, and the day is to happen or may happen before the thing which is the consideration of the money, or the act is to be performed, an action may be brought for the money, or for not doing such other act, before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent.' [Donovan v. Judson, 81 Cal. 334, 22 Pac. 682; Front Street, etc., R. Co. v. Butler, 50 Cal. 574; Platt v. Gilchrist, 3 Sand. 125; Loud v. Pomona, etc., Co., 153 U. S. 564, 576, 38 L. Ed. 822; Coleman v. Rowe, 5 How (Miss.) 460, 37 Am. Dec. 164; Couch v. Ingersoll, 2 Pick. 292, 301; Bean v. Atwater, 4 Conn. 310, 10 Am. Dec. 91; Edgar v. Boies, 11 Serg. & R. 445, 450.]" In Gail v. Gail, 127 N. Y. App. Div. 892, 898, a contract provides for a number of performances on each side of varying importance, it cannot be inferred that there was any actual intention that if default was made in some prior performance of slight importance, the subsequent performance should not be rendered. There is indeed a clear intention that if both performances are rendered, the performance first in order of time under the contract shall be first performed; but there is no clear intention expressed as to what shall happen if default is made in the prior performance; and in the absence of a clearly expressed intention, the consequence that for even permanent default in prior performance of slight importance subsequent performance should be wholly excused cannot be accepted.51 Therefore, unless an actual intention is clearly to be inferred that the consequence of non-performance of a prior performance the court said: "Whether or not the mutual and reciprocal agreements of parties to a contract are dependent or independent is determined by the order of time in which by the terms and meaning of the contract their performance is required. (Grant v. Johnson, 5 N. Y. 247; Glenn v. Rossler, 156 id. 161, 167, 50 N. E. 785.) If it appears that their performance of the whole or a part of the agreement of one party to the contract is to precede in time the performance by the other party of that part of the contract which the former seeks to enforce, then the right of the former to enforce as against the latter performance of the contract is dependent upon his prior performance of his part of the contract or tender thereof. (Grant v. Johnson, supra.)” See also Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975; Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga. App. 280, 95 S. E. 1028; Lang v. Hedenberg, 277 Ill. 368, 115 N. E. 566; Kchlor Flour Mills Co. v. Linden, 230 Mass. 119, 119 N. E. 698; Massachusetts Biographical Soc. v. Russell, 229 Mass. 524, 118 N. E. 662; Kinney v. Federal Laundry Co., 75 N. J. L. 497, 68 Atl. 111; Gourd v. Healey, 176 N. Y. App. D. 464, 163 N. Y. S. 637; McCurry v. Purgason, 170 N. Car. 463, 87 S. E. 244, Ann. Cas. 1918 A, 907; Coos Bay R. Co. v. Nosler, 30 Oreg. 547. 51 In the following cases, for instance, default in prior performance was held not to excuse liability for breach of a promise of subsequent performance. Mersey Steel & Iron Co. v. Naylor, 9 A. C. 434. In Mayo v. American Malting Co., 211 Fed. 945, 128 C. C. A. 443, under a contract for the sale of malt in instalments during the ensuing year the seller agreed that he would not quote prices on malt to other persons in the buyer's State. It was held that a sale of malt to another party in such State did not entitle the buyer to refuse to take the malt thereafter, as agreed, unless he was thereby prevented from selling the malt purchased by him at a satisfactory price. The court said (p. 947): "It is not every breach of a term or provision of a contract which will justify its rescission by the other party. If the breach did him no hurt, it was immaterial." is to be non-liability of the other party for subsequent performance, the situation is better dealt with on the theory of failure of consideration. The court can then take into account the comparative magnitude of the default. § 830. Order of performances when one or both take time. When the performance of mutual promises cannot be performed at the same instant they must either be performed without reference to one another or one must be performed prior to the other. Unless the contract or usage otherwise indicates, if both promises need time for their performance, it seems that it is the duty of each party to proceed without waiting for the other to perform, since neither party can demand that the other's performance shall come first.52 Nevertheless the promises are not absolute and independent in any strict sense; for should one party go forward with his performance and the other in violation of his duty should fail for a considerable time to perform, there can be no doubt that the former would be excused from continuing to perform. If one performance is capable of execution in a moment of time while the other is not, the implication of law in the absence of agreement to the contrary is that the performance which takes time must be rendered first. The typical contract of this sort is a contract of service. The employee must render the service before the payment for it is due. In the nature of things there is no reason why this should be true, but usage is inveterate that the employee shall trust the employer for compensation rather than the employer pay first and trust the employee for the performance of his undertaking; and parties must be understood to contract with reference to the usage. Perhaps the origin both of the usage and of the law is that the employers have been in a position to establish both.53 The rule is the same in a contract for 52 See Rochester Distilling Co. v. Geloso, 92 Conn. 43, 101 Atl. 500. 53 Mixer v. Mixer, 2 Cal. App. 227, 83 Pac. 273; Thayer v. Wadsworth, 19 Pick. 349; Tipton v. Feitner, 20 N. Y. 423; Alexander v. Hoffman, 5 |