It has been said that it is essential for the implication of concurrent conditions that the exchange contemplated shall be between the parties to the contract, on the ground that otherwise performance cannot in legal contemplation be made in an instant of time.93 Such a rule, however, seems somewhat artificial. If the performances are to be rendered at the same place, there is no practical difficulty in simultaneous performance by A to B, and by B to C.94 Nothing is more clear of all legal liens and incumbrances," the covenants for payment of the purchase money and for the delivery of the deed conveying a good title were held concurrently dependent, and a conditional tender of performance by the vendor in accordance with the contract was a condition precedent to his right to maintain an action to recover the purchase money from the purchaser.

In Glenn v. Rossler, 156 N. Y. 161, 166, 50 N. E. 785, the court said: "The contention of the appellant is, that all the provisions of the contract relating to the payment of that portion of the consideration constituted independent covenants which the plaintiff was required to fully perform by paying the entire amount before he became entitled to a deed, and it was only within a reasonable time after such payments were made that the defendants were required to give him a conveyance of the property. As sustaining that contention the plaintiff relies chiefly upon the language of the contract. It is to be observed that it, in terms, provides that after the payments mentioned are fully made, the defendants shall execute and deliver a sufficient deed of the premises, and 'at the time' deliver a tax and title search, and that 'at the time' the plaintiff should execute and deliver a mortgage to the defendants. The appellant claims that this language should be construed as not requiring the delivery of the deed until a reasonable time after the payments were

made, and as sustaining that claim, he cites the cases of Morris v. Sliter (1 Denio, 59); Meriden Britannia Co. v. Zingsen (48 N. Y. 247); Kirtz v. Peck (113 N. Y. 222), and Loud v. Pomona Land, etc., Co. (153 U. S. 564). The language in the contract under consideration in Morris v. Sliter, was very similar to that contained in this agreement, and it was there held that the plaintiff was not required to convey at the time of receiving the last payment, but must do so within a reasonable time after it was made. That case has been several times cited in the authorities to which the appellant refers, and in those particular cases a similar doctrine has been held. These authorities seem to some extent, at least, to sustain the contention of the appellant. But, upon an examination of the cases, it will be observed that in each case the decision was based upon the ground that it was the intention of the parties that the payment should precede the giving of the deed. The intention of the parties when properly ascertained, must doubtless control in this case as in others involving the construction of written contracts. Moreover, in many of the subsequent cases a principle adverse to that contended for by the appellant has been applied."

93 Langdell, Summary of Contracts, § 133, citing Jones v. Barkley, 2 Doug. 684, and Northrup v. Northrup, 6 Cow. 296.

94 In Burton v. Nacogdoches Lumber Co. (Tex. Civ. App.), 161 S. W. 25,

common in transfers of real estate than simultaneous action not only by a buyer and seller, but by a mortgagee. Where no practical difficulty exists in giving parties the protection of concurrent conditions, the law should not create artificial trouble. Where in bilateral contracts the promise on one side is subject to an express condition that performance shall be made of a counter promise which itself is not in terms · conditional, the performance of the two promises will, nevertheless, be concurrently conditional if the nature of the case permits it and the words of the express condition do not necessarily require that one performance shall precede rather than be concurrent with the counter-performance."

95

§ 836. Effect of the place of performance on concurrent conditions.

The place where performance is due under the contract necessarily affects the duties and rights of the parties. The place of performance may be fixed by the express terms of the contract, or the law, in the absence of such express provision, may impose an obligation of performance in a particular place. If neither of these circumstances exist, a party seeking to put the other in default must seek out that party and make appropriate tender. But where a place of performance is agreed upon expressly or by implication, performance or tender must take place there, and if either party is not there to receive performance at the proper time, he prevents performance. In such a case, therefore, a right of action is acquired by being ready and willing at the proper place if the other party is not present.97 Thus in contracts for the

there were held to be concurrent conditions in a sale of personal property, though delivery was to be made not to the buyer but to a third person on the buyer's order.

95 Giles v. Giles, 9 Q. B. 164; Paynter v. James, L. R. 2 C. P. 348; Kane v. Hood, 13 Pick. 281.

96 See cases cited supra, § 832. 97 Sleeper v. Nicholson, 201 Mass. 110, 112, 87 N. E. 473.

See also Rhode Island Malleable

96

Iron Works v. O. K. Nut Lock Co. (R. I. 1918), 103 Atl. 1036. It is not, however, incumbent on the holder of of a negotiable instrument payable at a particular place, to present it at that place in order to acquire a right of right of action against the party primarily liable on the instrument. Neg. Inst. Law, Sec. 70, infra §1164, Gordon v. Benguiat, 95 N. Y. Misc. 132, 159 N. Y. S. 1.

sale of personal property apart from any special agreement, the general rule is that the place of delivery is the seller's place of business if he has one, and, if not, his residence.98 This rule is subject to the qualification that under a contract to sell specific goods which to the knowledge of the parties when the contract was made, were in some place other than the seller's place of business or residence, that other place is the place where delivery is due.99

Where a contract requires delivery at a town where the buyer does business, delivery in the general receiving yards in that town with notice to the buyer, fulfils the seller's obligation.1 Sometimes the nature of a contract is such that apart from any agreement to that effect it is requisite that performance shall be at a particular place. Where the place

98 Uniform Sales Act, Sec. 43, infra, § 956, cited and applied in Dordoni v. Hughes, 83 N. J. L. 355, 85 Atl. 353; Leuders v. Fahlberg Works, 150 N. Y. S. 635, 90 N. Y. Misc. 590; Schiff v. Winter Motor Car Co., 153 N. Y. S. 961, 964. Such also is the rule of the common law. Sousely v. Burns' Admr., 10 Bush, 87; Bliss Co. v. United States Gaslight Co., 149 N. Y. 300, 43 N. E. 859; Halvordson v. Grossman (N. Y. Supr. Ct.), 107 N. Y. S. 627. And the rule laid down by Pothier, Contrat de Vente, No. 52 (see also French Civil Code, Art. 1609), is the general rule in regard to delivery. The English Sale of Goods Act, in making the place of business or residence of the seller the place of delivery unless the goods are known to be elsewhere, also agrees with the rule of the German Commercial Code, § 342.

99 Uniform Sales Act, § 43; Hatch v. Oil Co., 100 U. S. 124, 25 L. Ed. 554; Ragland v. Wood, 71 Ala. 145, 46 Am. Rep. 305; Phoenix Lock Works v. Capelle Hardware Co., 9 Houst. 232, 32 Atl. 79; Baxley Tie Co. v. Simpson, 1 Ga. App. 670, 57 S. E. 1090; Wilmouth v. Patton, 2 Bibb, 280; Sousely v. Burns' Admr., 10 Bush, 87; Smith

v. Gillett, 50 Ill. 290; Middlesex Co. v. Osgood, 4 Gray, 447; Janney v. Sleeper, 30 Minn. 473, 16 N. W. 365; Dakota Stock Co. v. Price, 22 Neb. 96, 34 N. W. 97; Lobdell v. Hopkins, 5 Cow. 516; Rice v. Churchill, 2 Denio, 145; Gray v. Walton, 107 N. Y. 254, 14 N. E. 191; Lodwick Lumber Co. v. E. A. Butt Lumber Co., 35 Okl. 797, 131 Pac. 917; Mann v. Flynn, 62 Or. 465, 125 Pac. 274; Nelson v. Imperial Trading Co. (Wash.), 125 Pac. 777; Hamilton v. Calhoun, 2 Watts, 139; Perlman v. Sartorius, 162 Pa. St. 320, 29 Atl. 852, 42 Am. St. Rep. 834. See also Moyle, Sale in the Civil Law, 100.

1 Petroleum Products Co. v. Alton Tank Line, 165 Ia. 398, 146 N. W. 52, citing Choctaw R. Co. v. Colorado Fuel Co., 93 Fed. 742, 35 C. C. A. 568; Missouri, etc., Coal Co. v. Pomeroy, 80 Ill. App. 144; Houdlette v. Dewey, 200 Mass. 419, 86 N. E. 790.

2 In Shales v. Seignoret, 1 Ld. Ray. 440, the contract in suit was for the sale of stock in the bank of England. The seller bringing suit averred that such stock was only transferable in the office of the bank in the presence of both parties, that he was present

of performance is fixed, but the contract does not exactly fix the time for performance, a party who seeks to put the other in default must give notice of his intention to tender at a certain time performance at the place fixed by law. This necessarily follows from the principles governing notice as a condition implied in fact.1

§ 837. Concurrent conditions are not necessarily mutual.

6

Concurrent conditions may exist in unilateral contracts as well as in bilateral; that is, a promisor may be bound to perform only on condition of receiving simultaneous performance and may by the terms or offer be so bound on receiving a conditional offer of performance.5 Conditions in unilateral contracts are necessarily classed as express conditions; but a condition which is expressed often may be, so far as the language of the contract is concerned, either an ordinary condition precedent, or a concurrent condition. Thus if A covenants to sell Blackacre if B pays $5,000 for it, so far as the words of the contract indicate, A might be entitled to demand the actual payment, or the unqualified and absolute tender of $5,000, before he became liable to perform on his part. The words of the contract are equally satisfied, however, by construing A's liability as arising on a tender by B, conditional on concurrent performance by A; and this construction will be given to such a contract. The obligations of the parties are not mutual, however, since B is under no obligation to buy the property. Even in bilateral contracts, it seems that the obligation of one party may be subject to a concurrent condition, while no such qualification exists to the obligation of the other party. This situation will arise where the contract has been substantially performed on one side before performance on the other side becomes due. The facts of an early

8

case suggest the problem. A contract was entered into by which the plaintiff agreed to sell a school with its good will, and to convey at a later day the school premises, and the defendant agreed to pay at such later day £120. The court held that the plaintiff could not recover payment without tender of the deed,' holding that part execution of the contract was only a circumstance from which the intention of the parties might be collected. This case is criticised by Professor Langdell, because the "main subject of the transaction was the school and the house was only an incident." Assuming this to be true, it seems that the criticism is well founded. It would not follow, however, as Professor Langdell urges, that if the covenants were not mutually dependent they were mutually independent. For certainly the purchaser could not be permitted to recover on the promise to give him a conveyance unless he made tender of the price. The fact that the seller had largely performed before payment was due, would surely be no reason why the buyer should be allowed to recover the remaining performance without any performance on his own part. Substantial performance by the plaintiff may excuse him from performing the remainder of his obligation concurrently, but the plaintiff's performance cannot excuse the defendant from performing or making conditional tender of performance as a condition of the plaintiff's promise.

The same question is frequently involved in contracts for the sale of land, where the purchaser is given possession, and is required to make payments of the price in instalments, the vendor contracting to convey on payment of the last instalment. The vendor is here protected by an express condition, but the purchaser's promise is in terms unqualified. Because of Serjeant Williams' rule based on Pordage v. Cole, to the effect that where part of the price is payable at a time prior to the performance on the other side, the obligation to pay the price is absolute, a few decisions have held that the promise of the buyer to pay the price is absolute, and that even the last instalment may be recovered without tender of 7 Glazebrook v. Woodrow, 8 T. R. 8 Summary of Contracts, § 136. 366.

91 Williams' Saund. 3191.