structive eviction from an apartment irrespective of the landlord's causation of the condition or liability in damages for it. 24 But this would not be universally admitted. 25

In the lease of a furnished house for a short period of time also, it is held in England and Massachusetts that a warranty is implied that the premises shall be tenantable at the time the tenancy is to begin.26 There is no implied warranty, however, even in the case of a furnished house that the premises will continue fit for habitation during the tenancy.27 27 As has been seen 28 in an executory contract to take a lease the obligation is dependent on the landlord's promise to repair. So the obligation of one who has agreed to purchase is conditional on the performance of a promise to put the premises in repair; 29 since in the nature of the case the promised repairs were to

24 In Barnard Realty Co. v. Bonwit, 155 N. Y. App. Div. 182, 139 N. Y. S. 1050, a plague of rats was held to justify the tenant in leaving without liability for rent. See also Madden v. Bullock, 115 N. Y. S. 723; Streep v. Simpson, 80 N. Y. Misc. 666, 141 N. Y. S. 863. In the case first stated, the court said: "Very large numbers of people live in tenement houses, apartment houses and apartment hotels in this city. Such tenants have, and can have, control only of the inside of their own limited demised premises. Conditions unknown to the ancient common law are thus created. This requires clasticity in the application of the principles thereof." But see Pomeroy v. Tyler, 9 N. Y. St. Rep. 514; Jacobs v. Morand, 59 N. Y. Misc. 200, 110 N. Y. S. 208. It is doubtless essential for the application of the suggested rule that the nuisance shall be one which the tenant cannot remedy. The landlord is not liable in damages for the consequences of supervening circumstances making even a furnished apartment untenantable. Sarson v. Roberts, [1895] 2 Q. B. 395.

25 In Hopkins v. Murphy (Mass., 1919), 124 N. E. 252, an apartment became infested with cockroaches

after two years of the lease had run. The landlord on request endeavored to abate the trouble, but failed to do so. Whereupon the tenants left the premises. It was held that they were liable for rent, the court saying: "There is nothing to indicate [the landlord], was responsible for the presence of the insects or that he failed in any duty which he owed to the defendant."

26 Smith v. Marrable, 11 M. & W. 5; Wilson v. Finch Hatton, 2 Exch. Div. 336; Ingalls v. Hobbs, 156 Mass. 348, 31 N. E. 286, 16 L. R. A. 51. But see Edwards v. McLean, 122 N. Y. 302, 25 N. E. 483, where a lessor was held not responsible for infection arising in a furnished house after the execution of a lease for four months, though before the beginning of the term; and Fisher v. Lighthall, 4 Mackey, 82, 54 Am. Rep. 258; Murray v. Albertson, 50 N. J. L. 167, 13 Atl. 394, 7 Am. St. Rep. 787, where it was held broadly that there was no implied obligation that a furnished house would be habitable.

27 Sarson v. Roberts, [1895] 2 Q. B. 395.

28 Supra, § 890.

29 Tripp v. Smith, 180 Mass. 122, 61 N. E. 804. Cf. Shenners v. Pritchard, Wis. 287, 80 N. W. 458.

precede the lease or purchase, and the mutual performances of leasing or selling a repaired house were intended as an exchange of one for the other.

§ 893. Conditions implied in fact.

Frequently a covenant or promise cannot be performed in the nature of things except upon or after the happening of a certain event. Conceivably the meaning of such an obligation may be (1) that the promisor undertakes that the necessary event shall happen; (2) that the promisee undertakes that it shall happen; or, (3), that though neither party is under an obligation that the event shall happen, the promisor shall be excused if it does not happen. It is a question of construction which of these three meanings is to be given to a particular contract. The necessary starting point of the law is that the promisor must fulfil his promise according to its terms unless some legal excuse can be found. When A contracts to sell Blackacre, if his wife's signature is necessary in order to enable him to convey a good title he binds himself to procure that signature. The nature of the case may be such, however, in view of mercantile custom, that a reasonable person would not understand that the promisor undertook that the necessary event should happen. Thus where A promises to sell goods at a valuation fixed by a third person, he does not undertake the obligation of making the valuer fix a price.30 A promise to perform building or construction work requiring plans is qualified by a condition that the owner shall furnish the necessary plans.31

Where the necessary event is peculiarly within the power of the promisee, the obligation of the promisor is conditional on the promisee's bringing the event to pass; and if the contract is bilateral there is an implied obligation on the part of the promisee that he will bring the event to pass. Thus wherever the coöperation of the promisee is necessary for

30 See supra, §§ 800, 801.

31 In Barnum v. Williams, 115 N. Y. App. Div. 694, 102 N. Y. S. 874, the court held that when the owner failed to furnish plans of the work, so as to enable the contractor to perform

within the time set, the contractor was justified in abandoning the contract and might recover on a quantum meruit for the work done up to that time.

the performance of the promise, there is a condition implied in fact that the coöperation will be given, and if the contract is bilateral there is an obligation to give it. Where, for instance, a seller contracts to deliver goods to a buyer he cannot do so unless the buyer will receive them, and he is not only freed from his own obligation, but acquires a right of action if the buyer refuses to receive them. So an employee's promise is impliedly conditional on the coöperation of the employer in the discharge of the work contracted for. A promise to ship a cargo of coal at a certain port is qualified by a condition that the promisee shall furnish the ship.32 A promise to lay out £100 under the direction of a competent surveyor named by the plaintiff, requires the appointment of such a surveyor as a condition of the promisor's liability.33 A promise to pay $4,000 in paper to be manufactured by a secret process which the promisee had agreed to teach the promisor, contains the necessary condition that the instruction shall first be given.34

It is not essential that performance of a promise shall otherwise be actually impossible in order to justify the implication in fact of conditions. Such conditions are similar in their nature to express conditions, except that the parties have expressed their intentions not in words but in the nature of their undertakings. Wherever, therefore, there is a necessary inference that an act must be done by the promisee before the promisor's performance is due, a condition will be implied. Sometimes the implication is both that the thing shall be done by the promisee and also that it shall be done before the promisor shall be liable; sometimes the promisee's obligation to do the thing in question is expressed, and the only thing

32 Armitage v. Insole, 14 Q. B. 728, cited and followed in Davis v. Columbia Coal Mining Co., 170 Mass. 391, 49 N. E. 629; Hughes v. Knott, 138 N. C. 105, 50 S. E. 586. See also Sutherland v. Allhusen, 14 L. T. 666; Stanton v. Austin, L. R. 7 C. P. 651; Stuart v. Lumber Co., 66 Or. 546, 132 Pac. 1; Dwight v. Eckert, 117 Pa. St. 490, 12 Atl. 32. In Pinkham v. Haynes, 103 Me. 112, 68 Atl. 642, the sellers agreed to deliver potatoes on board

cars to be furnished by the buyer "on or before" a certain date. It was held that the sellers were entitled to such notice of the arrival of the cars as would enable them with reasonable diligence to load the potatoes, and not having received such notice were freed from their obligation to deliver any potatoes.

33 Coombe v. Greene, 11 M. & W.

480.

34 Cadwell v. Blake, 6 Gray, 402.

resting in implication is that performance of the promisee's obligation must precede the promisor's liability. Where a contract for the sale of land requires the seller to furnish an abstract of title, performance of this promise must precede the obligation to pay the price, since otherwise the abstract would have little value.35 So where parties to a contract agreed that each should give a bond to the other as security for his performance, the implication is necessary that each was to give his bond before liability of the other arose on his principle promise, since otherwise the bonds could not fulfil their purpose of giving security.36

35 In Martin v. Roberts, 127 Iowa, 218, 102 N. W. 1126, the court said: "By the terms of the contract, the defendant was to furnish the vendee an abstract showing good and sufficient title; and, while no particular time therefor was fixed, the law requires that it be furnished in reasonable time for examination before the contract is to be performed. It was a condition precedent, and the defendant was not entitled to the balance of the money due under the contract until he had complied therewith. Wilhelm v. Fimple, 31 Iowa, 131, 7 Am. Rep. 117; Maichen v. Clay, 62 Iowa, 452, 17 N.W. 658; Bartle v. Curtis, 68 Iowa, 202, 26 N. W.73; Lessenich v. Sellers, 119 Iowa, 314, 93 N. W. 348; Webb v. Hancher, 127 Iowa, 269, 102 N. W. 1127.

Such a case must be distinguished from one where the purchaser seeks to enforce an option which will expire at a given day. In Pollock v. Riddick, 161 Fed. 280, 282, 88 C. C. A. 326, the court said: "We think this case is fully covered by the decisions in Kelsey v. Crowther, 162 U. S. 404, 408, 16 Sup. Ct. 808, 40 L. Ed. 1017, and Kentucky Distilleries, etc., Co. v. Warwick Co., 109 Fed. 280, 283, 48 C. C. A. 363. In each of these cases an option to sell land, etc., was involved, and a proceeding to enforce the option. In each an abstract of the land covered by the option was to be furnished, and the

failure on the part of the giver of the option to furnish the abstract was made the excuse for not paying or tendering the price of the land within the time fixed by the option. But the court held that the duty to tender the price of the land under the option and according to its terms existed regardless of the failure on the part of the giver of the option to furnish the abstract if the would-be purchaser desired to lay the ground for the suit for specific perform

ance.

Said the court, speaking by Mr. Justice Shiras (page 408 of 162 U. S., page 810 of 16 Sup. Ct. [40 L. Ed. 1017]). 'If the contract is construed as making it the duty of Crowther to tender the abstract, yet his failure to do so did not dispense with performance or the offer to perform on the part of the complainants. His failure to furnish the abstract might have justified the complainants in declaring themselves off from the contract and might have formed a successful defence to an action for damages brought by Crowther. But, if they wished to specifically enforce the contract, it was necessary for the complainants themselves to tender performance. Το entitle themselves to a decree for a specific performance of a contract to sell land, it has always been held necessary that the purchasers should tender the purchase money.'

36 Roberts v. Brett, 11 H. L. C. 337.

§ 894. Promises impliedly conditional upon notice.

One of the commonest necessary conditions is that of notice of some fact. "The rule to be collected from the cases seems