INDEPENDENT PROMISES. Those made in a contract upon which one party has a right of action against the other for any in jury sustained by him by reason of a breach of the covenants or promises in his favor, and where an allegation of non-performance of his covenant by the plaintiff is no defence to such action.
When the performance of one depends or is conditional on the prior performance of the other, the agreements or covenants are said to be dependent. McCrelish v.
Churchman, 4 Rawle (Pa.) 26; Tompkins v. Elliot, 5 Wend. (N. Y.) 496. Where perform ance of each is dependent or conditional upoh performance of the other, they are mutually dependent.
Where there are promises on both sides in an agreement,—executory considerations, —it always becomes a question whether one party is bound to perform his before the op posite party shall be required to perform those on his side. When the agreements are dependent, neither party is bound actually to perform his part of the agreement to en title him to an action for a breach by the other ; it is enough that he was able to per form his part and offered to do so; Ham mond v. Gilmore's Adm'r, 14 Conn. 479; Moore v. Hopkins, 15 La. Ann. 675..
Where the consideration is executory, technically speaking, the promise and not the performance is the consideration, and hence the obligation of one may he independent of the performance of the other: Upon exami nation and proper construction of mutual promises, it may appear "that the obligation of the one promise is made expressly or hal pliedly conditional upon the due performance of the other ; and then the performance of the promise, constituting the executory con sideration, is a condition precedent to the, liability to perform the other promise; in the latter case the mutual promises are called dependent, and in the former they are called independent." Leake, Cont. 344.
In Jones v. Barkley, 2 Dougl. 684, Lord Mansfield thus classified mutual promises: "There are three kinds of covenants. 1. Such as are. called mutual and independent, where either party may recover damages from the other for the injury he may have received by a breach of the covenants. in his favor, and where it is no excuse for the de fendant to allege a breach of the covenants on the part of the plaintiff. 2. There are covenants which are conditions and depend ent, in which the performance of one depends on the prior performance of another, and, therefore, till this prior condition is per formed, the other party is not liable to an action on his covenants. 3. There is also a
third sort of covenants, which are mutual conditions to be performed at the same time; and, in these, if one party was ready, and offered, to perform his part, and the other neglected, or refused, to perform his, he who was ready and offered has fulfilled his en gagement, and may maintain an action for the default of the other; though it is not cer tain that either is obliged to do the first act." In this case, it was clearly laid down that the criterion by which it is determined whether promises are dependent or not, is the intention of the parties, and this is to be determined from the whole contract ; id.; Adams v. Williams, 2 W. & S. (Pa.) 227; Philadelphia, W. & B. R. Co. v. Howard, 13 How. (II. S.) 307, 14 L. Ed. 157; 29 L. J. C. P. 253; or as Lord Kenyon aptly says, "It must depend on the good sense of the case ;" 6 Term 570. The rule is stated in Loud v. Water Co., 153 U. S. 564, 576, 14 Sup. Ct. 928, 38 L. Ed. 822. "The question whether cove nants are dependent or independent must be determined in each case upon the proper con struction to he placed on the language em ployed by the parties to express their agree ment. If the language is clear and unambig uous it must be taken according to its plain meaning as expressive of the intention of the parties, and, under settled principles of ju dicial decision, should not be controlled by the supposed inconvenience or hardship that may follow such construction. If the parties think proper, they may agree that the right of one to maintain an action against another shall be conditional or dependent upon the plaintiff's performance of covenants entered into on his part. On the other hand, they may agree that the performance by one shall be a condition precedent to the performance by the other. The question in each ease is, which intent is disclosed by the language em ployed in the contract." The intention is to be discovered from the order of time in which the acts are to he done, rather than from the construction of the agreement or the arrangement of the words ; Goodwin v. Lynn, 4 Wash. C. C. 714, Fed. Cas. No. 5,553; Speake v. Sheppard, 6 Harr. & J. (Md.) 85. See also Howland v. Leach, 11 Pick. (Mass.) 151; Knight v. Worsted Co., 2 Cush. (Mass.) 287 ; Leonard v. Dyer, 26 Conn. 176, 68 Am. Dec. 382 ; Cadwell v. Blake, 6 Gray (Mass.) 407.