language employed by the parties to express their agreement.33 Courts do not favor independent promises and will not construe them to be independent unless the intent of the parties to the contrary is clear.

Divisible Promises. Where complete performance is not the essence of the contract, so that the damages for an incomplete performance may be apportioned according to the extent of the breach, it is said that the promise of performance is divisible. In such case partial failure to perform by one party does not release the other party or discharge the contract. If the promise were to deliver a singe article, it is clear that it would not be divisible, but "where there is a purchase of different articles, at different prices, at the same time, the contract would be severable as to each article, unless the taking of the whole was rendered essential either by the nature of the subject-matter or by the act of the parties."' 34

Where the plaintiff was suing to recover freight on an incomplete cargo where he had agreed to load a complete cargo, Lord Ellenborough said that the question whether complete performance was necessary to entitle the plaintiff to recover, depending "not on any formal arrangement of the words, but on the reason and sense of the thing, as it is to be collected from the whole contract: whether of two things reciprocally stipulated to be done, the performance of one does in sense and reason depend upon the performance of the other.......Here the delivery of the cargo is in its nature divisible, and, therefore, I think it is not a condition precedent; but the plaintiff is entitled to recover freight in proportion to the extent of such delivery; leaving the defendant to his remedy in damages for the short delivery." 35

Where the contract is for delivery by installments, there is a direct conflict of authority both in England and the United States as to whether defective delivery as to one

38 Loud v. Water Co., 153 U. S. 564, 576, 38 L. ed. 822. 34 Wooten v. Walters, 110 N. C. 251, 14 S. E. 734.

35 Ritchie v. Atkinson, 10 East. 295, 307, 308, 103 Eng. Rep. Re. 787, 791.

installment will give a right to terminate the contract. In a leading case decided by the Supreme Court of the United States, the contract was for the sale of "5,000 tons of iron rails for shipment...... at the rate of about 1,000 tons per month, beginning February, 1880, but the whole contract to be shipped before August 1, 1880." It was held that shipments of only 400 tons in February and only 885 tons in March gave a right to rescind the whole contract. This case represents the weight of authority in the United States at least as to commercial contracts.

Failure to perform a part or an installment will always give a right of rescission where the terms of the contract make complete performance a condition precedent to its remaining in force or where it is clear that complete performance goes to the root of the contract, or where the party in default expressly announces his intention to abandon the contract.

Subsidiary Promises. Where the breach is of a term of the contract which the parties evidently did not regard as vital to its main object, it will not operate to discharge the contract but will leave the injured party to his action for damages. Thus, where an opera singer arrived in London only two days before his engagement in breach of a term of his contract that he should be there without fail at least six days before the commencement of his engagement for the purpose of rehearsals, it was held that the breach did not go to the root of the matter so as to entitle the other party to treat the contract as discharged.37 The test seems to be whether the failure to perform has rendered the performance of the remainder of the contract a thing different in substance from that contracted for. Thus, where the breach amounted to an absence from the first four performances, it was held to be sufficient to discharge the contract.38

Conditional Promises. Conditional promises are with

36 Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366.

37 Bettini v. Gye, (1876) 1 Q. B. Div. 183.

38 Poussard v. Spiers, (1876) 1 Q. B. Div. 410, 45 L. J. Q. B. 621.

reference to time either (a) subsequent, (b) concurrent, or (c) precedent.

Subsequent. A condition subsequent does not affect the commencement of a party's rights, but its happening merely brings them to a close. This has been previously considered.

Concurrent. Concurrent conditions require simultaneous performance by both parties and are particularly applicable to contracts of sale where, if nothing is said as to the time of delivery or the time of payment, neither the seller nor the buyer can demand performance by the other unless he is himself ready to perform. We have already considered this situation.

Precedent. Conditions precedent, the breach of which will discharge the contract are called dependent conditions and must be distinguished from another class of conditions precedent commonly called suspensory conditions and from warranties, with which conditions precedent are often confused. A suspensory condition suspends the right to call for performance until the happening of an event or the doing of some act, and, therefore, its non-performance does not operate as a discharge. It merely prevents the creation of any liability. An express warranty is merely a collateral agreement of indemnity, the breach of which cannot discharge the contract to which it is collateral or take away existing liabilities upon it. Since an implied warranty, as of title, is a part of the contract itself, its breach may operate to discharge the contract, and is, therefore, in truth a condition precedent.

A dependent condition is a statement or promise, the truth or untruth of which discharges the contract. Whether a particular provision in a contract is a condition or a warranty depends on whether the parties regarded it as essential so that a breach would go to the essence and, therefore, deprive the promisor of the benefit of the contract.39

Waiver of performance of a condition precedent may 39 Freeman v. Taylor, 8 Bing. 124.

operate to change its character to a warranty for which only damages can be recovered, provided the performance is substantial and the acceptance is with knowledge of the breach. A waiver may be inferred from unreasonable delay in the enforcement of the condition.40

BY IMPOSSIBILITY OF PERFORMANCE

We have already noted that impossibility apparent on the face of the agreement or arising from the non-existence of the subject matter, prevents the contract from coming into existence. But the question there relates to the formation of the contract and not its discharge. At this time we are concerned only with impossibility arising subsequent to the formation of the contract.

§ 129. General Rule. The general rule is that impossibility, even though it arise without the fault of the promisor, does not discharge him from liability to perform, and he will be held liable in damages as for failure to perform. If a party wishes to protect himself as against such a contingency, he should make his performance conditional upon its continued possibility. The Supreme Court of the United States says:

"Where the contract is to do a thing which is possible in itself, the performance is not excused by the occurrence of an inevitable accident or other contingency, although it was not foreseen by the party, nor was within his control. ""41

Thus, where a person has agreed to erect a building or do a certain piece of work, he cannot plead that the building burned before its completion and acceptance or that the work unexpectedly proved so difficult that it was impossible to perform it.42 Breach of a contract to build a machine within a certain time is not excused because of unforeseen accidents making performance impossible. Even though the impossibility were created by an act of God or the

40 Smith v. Dennie, 6 Pick. (Mass.) 262, 17 Am. Dec. 368.

41 Jones v. United States, 96 U. S. 24, 29, L. ed. 644.

42 School Trustees v. Bennett, 27 N. J. Law 513, 72 Am. Dec. 373.

public enemy, it will not excuse performance, unless the obligation was one imposed by law-as, for example, the obligation of a common carrier to deliver safely-and not contractual.

Exceptions to Rule. Impossibility caused by some change in the law or by some action by or under the authority of the government will discharge the promisor from performance. Thus, a contract to erect a wooden building would be discharged by the subsequent enactment of a law forbidding the erection of such buildings. And so if a corporation were enjoined from doing business, it would be discharged from its contracts of employment.43

Where the person who is to perform dies or is incapacitated, or the thing to which the contract relates is destroyed, so as to make performance impossible, the contract is discharged. A contract to do work for which the promisor has been selected because of his personal qualities, is discharged by his death because it is something which neither agents nor executors could perform. Thus, no liability arises from breach of a promise to marry or to paint a picture, or to give a concert, or to perform any other personal service, where the failure to perform arises from death or illness of the promisor.

Where the contract relates to specific things upon the existence of which performance of the contract depends, it is held that their destruction terminates the contract, if through no fault of the promisor. Thus, where a person contracted to deliver a certain quantity of potatoes to be raised on a particular piece of ground and the entire crop was destroyed by blight, it was held that the contract was terminated and the promisor excused from performance.44 "The contract was for 200 tons of a particular crop in particular fields......not 200 tons of potatoes simply, but 200 tons off particular land... ... and, therefore, there was an implied term in the contract that each party should be

43 People v. Globe Insurance Company, 91 N. Y. 174.

44 Howell v. Coupland, (1874) L. R. 9 Q. B. 462, 466, 46 L. J. Q. B. 147, affirmed in 1 Q. B. D. 258.