3. Independent may be difficult to decide whether or not the promises are independent of one another. It will be sought to discover what was the intention of the parties, and that intention may be disclosed by the order in which the several promises are to be performed. It was held in an English case that "whether covenants are or are not independent of each other must depend on the good sense of the case, and the order in which the several things are to be done." Suppose that several different articles are bought at different prices and at the same time. If it could be shown that the purchaser intended to take all or none, then the contract would fail if all the articles could not be delivered. If it could be shown, however, that this was not the intention, then the contract would be severable as to each article.
4. Conditional contract is said to be conditional when it is made to depend upon some event, future and uncertain, by suspending it until the event happens, or by dissolving it according as the event does or does not happen. Generally speaking, if the contract depends upon some event which, unknown to the parties, has actually happened when the contract is made, the contract is not conditional, but takes effect or is defeated from the time when it is made.
The condition must not be contrary to law, or in consistent with good morals, and the contract is void if it. is made to depend upon the doing or happening of something which is impossible. Thus if A con tracts, promising to pay B $100 if C shall climb to the moon, the condition is an impossibility and the prom ise void. An obligation must not be conditioned merely on the will of the party promising. Thus a promise by A to go to Toronto on a certain day if he feels in the mood to do so, is conditional purely on the will of A; tho A may validly promise to pay B $100 if he should go to Toronto on a certain day. If no time is fixed for the fulfilment of the condition, it may be carried out at any time.
The condition will not be deemed to have failed un til it becomes certain that it will not be fulfilled. The condition maY be merely suspensory or floating in its nature, and non-performance will not discharge the promisor. The actual carrying out of the promise is merely suspended. Thus in a fire insurance policy the liability of the insurer is _conjectural, and fulfilment of the insurer's promises is suspended until the event insured against takes place. But if A contracts that
he will buy a horse from C if B will buy one from C, then A's promise is conditional upon B's promise, and if B does not perform his contract, A need not per form his. These are examples of the condition prece dent. An action in damages may lie for breach of a condition precedent, which is vital in its nature and not merely suspensory. The injured party may also as a result be discharged from his promise.
If the parties to a contract agree conditionally that they each must do something simultaneously (concur rent conditions), then in order that one shall have an action in damages for non-performance, against the other, he must have been ready and willing, at the time fixed for performance, to do what he had undertaken.
If either party is not ready and willing at that time, the other is discharged.
If a company employs an agent under a contract by which it can dismiss him by giving him one week's no tice, the condition is fulfilled by the giving of the no tice, and the contract is thereby definitely terminated. This is a condition subsequent.
It is a well-recognized principle of law that a con tract for personal services which can be performed only during the lifetime of the party contracting is subject to the implied condition that he shall be alive to perform them; if he dies, his executor is not liable to an action for breach of contract occasioned by his death.' If an employer dies, his servant is dis charged and cannot treat the contract as in force against the master's personal representatives.' Thus it has been laid down that "a contract by an author to write a book or by a painter to paint a picture within a reasonable time would be deemed subject to the con dition that if the author became insane or the painter paralytic, and so rendered incapable by an act of God, of performing the contract, he would not be personally liable in damages, any more than his executors would be if he had been prevented by death." In an English case, the father of a boy entered into a con tract with a firm that his son should serve as an ap prentice for a number of years. The boy fell ill and the employer sued the father for breach of the con tract. It was held that "it must be taken to have been in the contemplation of the parties when they entered into this covenant that the prevention of performance by the act of God should be an excuse for non-per formance," and the action was dismissed.