An opinion in this case was first handed down on October 31, 1892, and was delivered by BAILEY, Ch. J., in connection with which he made the following statement:

APPEAL by defendant from a judgment of thus obtained, as the evidence tends to show. the Appellate Court, First District, affirm were, owing to a variety of causes, liable to be ing a judgment of the Circuit Court for Cook inaccurate. Richards, the plaintiff, was the County in favor of plaintiff in an action inventor and patentee of a new process for brought to recover profits which plaintiff would weighing and transferring grain in bulk, have received from a contract with defendant, which was claimed to be cheaper than the old which defendant was alleged to have wrong method, and which furnished more accurate fully refused to carry out. Affirmed. weights than could be had by the existing mode of weighing. By this process, the loaded cars of grain were run on to an elevated track in a transfer house, and empty cars were placed alongside of them on a lower track. The grain was then shoveled by steam shovels from the loaded cars into hoppers, where it was weighed, and then allowed to run by force of gravity into the empty cars below. Negotiations were thereupon entered into between Richards and the defendant company with a view to the adoption by the latter of this new mode of weighing and transferring grain, and these negotiations resulted in a written contract between the company, of the first part, and Richards, of the second part, bearing date January 2, 1884, which contract was afterwards assigned by Richards to the firm of Richards, Maynard & Co., consisting of Richards and John W. Maynard.

This was a suit in assumpsit, brought by Edward S. Richards, surviving partner of the firm of Richards, Maynard & Co, against the Lake Shore & Michigan Southern Railway Company, to recover damages for breaches of a contract, the material provisions of which will be stated presently. Prior to the execution of said contract, grain brought by western railroads to Chicago, and destined, either be fore or upon its arrival in that city, for transportation by rail to the east, was delivered by the western to the eastern railroads, and was by the latter weighed and transferred from western to eastern cars. At that time the transfer of such grain was accomplished by placing the loaded and empty cars side by side on parallel tracks, and by shoveling the grain from one car to the other by hand. The weighing was done on track scales, by first weighing the loaded car, and then weighing it after it was unloaded, the difference between such weights being the weight of the grain. This process was expensive, and the weights

those cases the question under discussion had reference to the proper form of pleading rather than to the right to rescind, and since the results of those decisions are fully shown by the cases directly discussing the right of rescission, such cases are omitted from this note, excepting where the question of rescission was directly discussed.

Dependent and independent covenants. The question of dependent and independent covenants has been much discussed in reference to whether, in order to maintain an action for breach by the other party, plaintiff must allege that he has himself performed. Barruso v. Madan, 2 Johns. 145.

The result of this discussion is shown in decisions on the right to rescind, as will appear from the following cases:

Said contract recited, by way of preamble, that one of its objects was to provide a cheaper method of transferring grain, mill feed, and seed from one car to another than the one employed by said company, and for that purpose to use the device of Richards, secured to him by letters patent, etc.; and that Richards intended to erect and build a grain transfer house on the land thereinafter described, for

Where by the terms of a contract concurrent acts are to be performed, as a delivery of property by one party and a payment of the price by the other, if either party should refuse to perform on his part the other party will be at liberty to treat it as an abandonment of the contract and justify a rescission of it. Fletcher v. Cole, 23 Vt. 114.

When one party has departed from the terms of a special contract for the delivery of specific articles from each to the other, the other party may treat it as rescinded; and if by the terms of the contract concurrent acts are to be performed, as of the delivery of property by one person and the payment of price by the other, if either party should refuse to perform his part of the contract the other may treat the contract as abandoned and justify his rescission of it. Stahelin v. Sowle, 87 Mich. 124.

or offered to perform his part of the contract, and then adds, it follows that neither party had a right to rescind the contract without the consent of the other until on an offer to perform on his part the other party had refused.

The distinction is clearly settled between depend- In Shirley v. Shirley, 7 Blackf. 452, the court holds ent and independent covenants or promises. In the that because the obligations of the contract were first case the conveyance and payments are to be concurrent neither party could compel specific simultaneous acts, and there then must be an ex-performance by the other until he had performed isting capacity in the one who is to convey to give a good title; in the other case, where the payments are to precede the conveyance, it is no excuse for nonpayment that there is not a present existing capacity to convey a good title, unless the one whose duty it is to pay, offers to do so on receiv ing a good title, and then it must be made to him or the contract may be rescinded. Robb v. Montgomery, 20 Johns. 15.

When concurrent acts are to be performed by the parties to a contract, the party seeking for damages for the nonperformance by the other party is required to aver only that he was ready and willing to perform on his part, and that defendant was requested to perform but refused or neglected to do so. Tinney v. Ashley, 15 Pick, 546, 26 Am. Dec. 620.

In Lassing v. James, 107 Cal. 348, where the contract on the one side was to furnish grass and hay to feed cattle and on the other to furnish cattle to eat the hay and pay for what was used, suit was brought for refusal to furnish the cattle and pay for the hay, and defendant claimed that plaintiff had so failed to carry out his contract as to justify defendant in repudiating it and withdrawing from its provisions. The court says: "Of course such withdrawal could only be justified upon the principle that the covenants to be performed by the respective parties were entirely mutual and de

fer all products contemplated by this agreement which may be delivered to said transfer house by or under the direction of said first party with promptness and despatch, and within such time as to prevent any accumulation of cars or freight, whereby shippers might have just ground of complaint; and, if said second party shall fail to transfer as fast as required, the said first party may transfer by such other method as it deems proper, and said second

the purpose of so handling, weighing, and, Richards, on his part, agreed at his own cost transferring in bulk such grain, mill feed, and and expense to construct and maintain, for the seed as might be delivered to him for that pur- full period of ten years, on said land, a transfer pose by the company. The company then house and approaches, suitable and proper for agreed in consideration of the nominal rental carrying out the purpose in said contract exof $10 per year, and of the covenants in the pressed, and furnish and supply said house contract to be kept and performed by Rich- with hopper scales and every other device neards, to lease to him, for the term of ten years, cessary to properly weigh and transfer said certain land upon which to erect such transfer grain, etc. He also covenanted as follows: house and the necessary approaches thereto,Second. That he will receive, weigh, and transand also agreed that as soon as such transfer house and approaches were constructed, it would build and maintain thereon and through such transfer house such track or tracks as might be necessary to transact the business contemplated by said agreement, and do all switching of loaded and empty cars to and from said transfer house at its own expense, and without cost to Richards, provided that the actual cost thereof should be taken into account in determining the fair amount to be paid Rich-party shall do all said work in transfer house ards, as provided in the following covenant: "Third. Said first party further covenants and agrees that, in case there shall be any saving to it in switching, weighing, and transferring of products in this agreement referred to through the methods and devices adopted by said second party, over and above the actual cost of doing the same work under the ways and methods now in use by said first party, then, and in that event, it will pay to second party one half of said saving, the just and actual amount thereof to be ascertained and deter mined as provided in covenant 'first,' of 'Mutu al Covenants,' said amounts, if found due, to be paid to said second party on or before the middle of each month for the month preceding."¡

pendent upon each other." But the court held that there was no need of discussing the question of dependence of the covenants because there was no such breach as justified the other in withdraw ing.

If the covenants are mutually dependent one party cannot recover without averring performance or an offer to perform on his part. Kane v. Hood, 13 Pick. 281.

In Robson v. Bohn, 27 Minn. 333, where lumber was to be delivered by one to the other of the contracting parties, and the latter was to make certain payments during the time the contract continued, the court held that the covenants to pay and to deliver were dependent, and that a refusal to make a payment when it was due justified the other party in treating the contract as abandoned and suing for what he had delivered.

Where it was sought to justify the neglect to pay insurance premiums because of default on the part of the company, the court says failure of one party to a contract to perform some of its obligations when it consists of a number of independent provisions furnishes no excuse for nonperformance by the other party. It is only when the nonperformance is a condition precedent, or where such party has wholly refused to perform or has wholly disabled himself from completing a substantial performance, that the other party is relieved from performance or a tender thereof. Bogardus v. New York L. Ins. Co. 101 N. Y. 335.

at his own cost and expense, without cost to said first party; provided, that the actual cost of doing said work shall be taken into account in determining the saving, if any, between the Richards method of transferring grain and the methods in use by the first party at the date of this agreement, and also for the purpose of determining the just amount to be paid to said second party, as provided in covenant 'third' of first party: provided, also, that the cost of weighing such products shall not be considered in determining the actual cost of such transfer."

Said contract then contained various paragraphs denominated "Mutual Covenants," the first of which provided the mode for ascertain

protected because the other party is in no position to maintain a suit. On the other hand, if the rescinding party is suing for what he has delivered under the contract, or for a breach. his action is founded on a claim that he has been released from performance by the other party's breach. A course of reasoning such as ruled the other case would defeat this. Therefore it becomes impossible to decide such case on the principles governing the other class, but it becomes necessary to ascertain what affirmative rights the other party's default has given him. The latter class of cases is the stronger, but the distinction between the two classes is not always maintained, and the same authorities are frequently cited in both classes.

Promise for promise.

Cases in which a promise was made in consideration of a promise were not regarded as capable of rescission because of the other party's nonperformance.

In case of a promise in consideration of a proise performance by plaintiff need not be alleged to sustain the action. Bettisworth v. Campion, Yelv. 134.

In Gower v. Capper, Cro. Eliz. 543, the declaration alleged that the defendant was indebted to plaintiff by bill in £20, and defendant, in consideration that plaintiff assumed unto him to deliver him the said bill, assumed to procure two sufficient sureties to be bound for the payment of the money, and It will be noticed that the language and decision | alleged that the bill was delivered, but the sureties in each case must be limited to the class to which | found were worthless, and defendant pleaded that it belongs. For example, a decision that if the covenants are dependent one party cannot recover without averring performance or an offer to perform on his part, is applicable to a case where the rescinding party is 'sued for a breach and is

the bill was not delivered, but the court held the allegation as to delivery of the bill was mere surplusage, for the consideration was the promise to deliver.

Where defendant promises to do certain work “in.

ing and determining the cost of transferring, destination, but, upon the request of said secgrain, etc., by the new method, and the amount ond party, said first party will collect such of money thereby saved. The only other pro- weighing charges as he may show are due to visions of the contract material to the present him, in the same manner as other advanced controversy are the 3d, 4th, and 6th of said charges are collected, and pay the amount so Mutual Covenants," which are as follows: collected to said second party on or before the "3d. And it is mutually covenanted and agreed middle of each and every month. . . . 6. If at that all shipments originating at points west of any time differences should arise between the Chicago, and properly billed through to east- said parties thereto as to its spirit, meaning, or ern points, and requiring transfer through said execution, such differences shall be settled by house, shall be classed through shipments,' a reference of all matters in dispute to three and be transferred in the same manner as re- disinterested arbitrators, each of the parties consigned property, and upon the same basis bereto to select one, and the two so chosen to of cost to said first party; it being specially un- select a third, and the decision of any two of derstood and agreed that under no circumstan- the court so formed shall be binding between ces is said first party to be charged for any the parties hereto, final, and without appeal.” weights upon any transfers made through this house, but nothing in this agreement contained shall be so construed as to prevent said second party from charging such fees as may be agreed upon between him and the owner of the property delivered for weights and transfer and for such other service as he may render in connection therewith, and from collecting his charges as provided in following mutual agreement. "4th. It is further mutually understood and agreed that said second party is to receive his compensation for his time, labor, and investments employed in building, operating, and maintaining said transfer house entirely from the weighing of property passing through it, and from the owners thereof, and not from said first party, except as provided in covenant 3 of said first party; and said first party shall not make use of the weights obtained from said second party in the conduct of its business for any other purpose than billing property to

The declaration, after setting forth said contract in hæc verba, alleges that on the 23d of January, 1884, the plaintiff assigned all his interest in said contract to the firm of Richards, Maynard & Co., and that said assignment was ratified and confirmed by the defendant; that said firm thereupon erected on the land described in the contract a grain transfer house and hopper scales, and all machinery pertaining thereto, the same being completed June 24, 1884, when said firm entered upon the business of transferring grain, etc., from car to car, and weighing the same, as provided for in the agreement; that said firm could not conveniently transfer mill feed through their transfer house, and that the right to have such transfer of mill feed and the weighing thereof was waived by the defendant; that said firm continued to transfer and weigh all such grain and seed as were presented to them by the defendant at their transfer house to be transferred and

consideration of the promise made by defendant," | stalments, and the vendor permits the vendee to he cannot claim that the payment of the first in- | retain possession and make other payments after stalment of the contract price as arranged in the the whole contract price is due, he cannot seize the contract is a condition precedent, failure to per- property and terminate the contract for nonpayform which will entitle him to abandon perform-ment until he has demanded payment of the venance of the contract. Campbell v. McLeod, 24 N. dee. O'Rourke v. Hadcock, 114 N. Y. 541. S. 66. II. Condition precedent.

If there is a promise to transfer stock in consideration of the promise to pay for it, the transfer is a. How far is right to rescind controlled by question not a condition precedent to the maintenance of an action on the promise to pay. Blackwell v. Nash, 1 Strange, 535.

of condition precedent.

of the latter's covenant must be so material that in case of its nonperformance the party seeking to rescind would receive practically no benefit from the contract.

Closely allied with the doctrine of dependent and independent covenants was that of conditions precedent. And the courts seem to have reached the Cases omitted. conclusion that to justify a rescission by one party Certain classes of cases, which might apparently for default of the other the duty of performance be within the subject, will be omitted from this on his part must not only be dependent upon pernote because they form distinct classes by them-formance by the latter but the unperformed part selves and are governed by rules which would throw little or no light upon the questions here discussed. Of these are cases turning upon the construction of the particular contract,including those where the party against whom the rescission was claimed has been held to be not in default; cases where the contract itself provided for rescission, where rescission is not allowed because of the conduct of the party attempting it, and where performance has been expressly forbidden; also equitable actions for rescission as well as attempts to reclaim property for failure to pay and to return goods because they did not correspond with sample or warranty.

Attention is particularly called, however, to the fact that a party having otherwise a good right to rescind may have estopped himself or waived his right.

Thus, when an executory contract for the sale of chattels provides that title shall not pass until the agreed price is fully paid, which is payable in in

Boone v. Eyre, 1 H. Bl. 273, note, was an action of covenant on a deed whereby a plantation together with a stock of negroes was conveyed by plaintiff in consideration of the payment of a certain amount in hand and an annuity for life. The breach assigned was the nonpayment of the annuity and there was a plea that the plaintiff did not have the title to the negroes and so was not entitled to convey. Lord Mansfield said: "The distinction is very clear. Where mutual covenants go to the whole of the consideration on both sides they are mutual conditions the one precedent to the other, but where they go only to a part, where the breach may be paid for in damages, there defendant has a remedy on the covenant and should not plead it as a condition precedent."

But the same result has in later times been

Therefore, such cases as Pordage v. Cole, 1 Wm. Saund. 319, in which it was held that in case of in-mine whether the deviation was of such a nature dependent covenants in a contract, the performance of one was not a condition precedent to the enforcement of the other, and hence that performance was not a necessary allegation in an action to enforce the other, and the cases cited by Seargent William's note thereto, upon the question of what covenants are dependent and what independent have very little bearing on the question, and rather tend to confuse than to throw light upon it.

Mr. John N. Jewett, for appellant:

was decreed to be indebted to said complain-1 After that opinion was filed a petition for ants for such nonperformance of said prom-rehearing was granted and the rehearing reises and undertakings; that said cause was sulted in a departure from the rulings of the referred to a master in chancery for an ac- former opinion and that opinion is therefore counting, to ascertain the amount of such in- omitted, the rehearing opinion being substidebtedness; that the master found that the tuted for it. defendant was indebted to said complainants in the sum of $9,686.68 damages; that the court confirmed such finding, and entered a decree To justify one party to a contract in susordering the defendant to pay the complainants pending its execution and at the same time that sum and costs; that while an appeal to the entitle him to sue for and recover as damages appellate court from said decree was pending, the future profits which might have been reMaynard died; that said appeal, being pros-alized by its complete execution, the other party ecuted against the present plaintiff as survivor, must have been guilty of a breach, such as in was afterwards affirmed by the appellate court, effect prevented, or absolutely put an end to, and that thereupon the defendant paid and satis-the further execution of the contract by the fied the same. To said special plea the plaintiff complaining party. replied that the cause of action set out in the There are two classes of cases which may déclaration was not for the nonperformance of arise between parties to an executory contract. the same promises and undertakings in said The first consists of those cases which justify plea mentioned, and for which said decree was one of the parties in rescinding the contract by rendered, but for the nonperformance of other reason of some failure or default of the other and different promises and undertakings from party. In all such cases, the party availing the defendant to the plaintiff. At the trial, himself of the breach or default puts an end to which was had before the court and a jury, the contract absolutely, and is entitled to reevidence was offered by the plaintiff tending to cover only the value of the service rendered up sustain the cause of action alleged in his decla- to the time of the rescission. The second ration, and the jury thereupon returned their class consists of those cases where one of the verdict finding the issues for the plaintiff, and parties commits what is denominated a total assessing his damages at $75,000. For this breach, preventing the other from executing sum and costs the court, after denying the de- the contract on his part. In such cases the fendant's motion for a new trial, gave judg-party prevented from executing the contract ment for the plaintiff. On appeal to the ap-on his part may sue for and recover as dampellate court said judgment was affirmed (40 ages the profits he would have made if he had Ill. App. 560), and this appeal is from said been permitted to execute the contract. judgment of affirmance.

held that it was a warranty and not a representation and that therefore it was a condition precedent, and being a condition precedent and not performed, the defendant was not bound to load the vessel. And this rule was followed in Oliver v. Fielden, 4 Exch. 135, 18 L. J. Exch. 353.

Stipulations in a charter party that the vessel shall sail with all convenient speed are not conditions precedent, unless by a breach of the mthe object of the voyage is wholly frustrated. Tarrabochia v. Hickie, 1 Hurlst. & N. 183, 26 L. J. Exch, 26.

Under a charter party providing that the vessel shall sail with all convenient speed, the failure to comply with the stipulation entitles the other party only to a cross action whenever the consequence of the failure has been only partially injurious and has left the main object of the contract still attainable. Dimech v. Corlett, 12 Moore, P. C. C. 199.

In Glaholm v. Hays, 2 Mann. & G. 266, 2 Scott, N. R. 471, in which defendant was sued for repudiating a charter party because the voyage was not begun on the day named, the whole case was made to turn upon whether that stipulation was a condition precedent or not, the court saying, whether a particular clause in a charter party should be held to be a condition upon the nonperformance of which by the one party the other is at liberty to abandon the contract and consider it at an end, or whether it amounts to an agreement only, the breach whereof is to be recompensed by an action for damages, must depend upon the intention of the parties, to be collected from the terms of the agreement and from the subject-matter to which it relates. And in that case the stipulation was held to be a condition precedent.

In Storer v. Gordon, 3 Maule & S. 308, where a ship owner was to take a cargo to a certain place

Masterton v. Brooklyn, 7 Hill, 61, 42 Am.

and there deliver it and take on another one for the return voyage, it was held that the delivery was not a condition precedent to the obligation to furnish a return cargo, but that the fact that the outward cargo was seized by the government did not give the freighter the right to refuse to furnish the return cargo.

In Davison v. Von Lingen, 113 U. S. 40, 28 L. ed. 885, it was held that a stipulation in a charter party as to the position of the vessel was a condition precedent. "It is a substantive part of the contract, and not a mere representation, and is not an independent agreement, serving only as a foundation for compensation in damages. A breach of it by one party justifies a repudiation of the contract by the other party, if it has not been partially executed in his favor."

A distinction has been made which may perhaps be valid where the stipulation was that the ship should sail by a specified date.

A stipulation in a charter party that the vessel shall sail from a certain port before a specified date is a condition precedent, and unless she does so the charterer cannot be compelled to load her. Croockewit v. Fletcher, 1 Hurist. & N. 893.

And a distinction must be made between the above cases and those in which liability for freight is sought to be evaded, although all or most of the benefits of the voyage have been received.

In Havelock v. Geddes, 10 East, 555, and Clipsham v. Vertue, 5 Q. B. 265, Dav. & M. 343, 13 L. J. Q. B. 2, 8 Jur. 32, the defendant did not seek to rescind or abandon the contract, but to refuse payment under a charter party after he had received the benefit of it, because the vessel was not made staunch as the charter party required, but the court held that after he had received the benefit of the contract he could not insist that making the vessel staunch was a condition precedent.