Where a day is appointed for payment of money or doihg any act, and such day must or may happen before the thing which is the consideration of the payment or performance of the other act, is to be made or done, the promises are independent ; 1 Wms. Saund. 320 b, rule 1; Betts v. Perine, 14 Wend. (N. Y.) 219; Seers v. Fowler, 2 Johns. (N. Y.) 272; Couch v. Ingersoll, 2 Pick. (Mass.) 300; a distinction has been drawn, however, as to whether the time of the latter payment or performance is fixed entirely by reference to the former, and when it is so, the first is a condition precedent; Northrup v. North rup, 6 Cow. (N. Y.) 296 ; otherwise, if It Is to be determined without reference to the other ; 10 A. & K. 50.
It is the second of Serjeant Williams' rules, and the view is supported by Leake (Cont. 346), that if the day appointed is to happen after the act or payment, the prom ises are dependent; the cases cited being 18 C. B. 673 and 25 L. J. C. P. 254. The view that the last promise to be performed Is dependent,—the other not,—is supported by Langdell (Sum. of Contr. § 122), on the authority of Grant v. Johnson, 5 N. Y. 247, which is put directly upon that rule. But Harriman (Contr. 154) dissents from this view and considers the authority relied upon by Langdell as "unsound in its reasoning," and he subjects it to severe criticism, as the result of what he terms the "peculiar and erroneous doctrine" of the New York courts. In this connection it is to be observed also that the rule thus questioned is not included in the fundamental rules of construction set forth in Bouvier's Institutes.
If two acts are to be done at the same time the promises are mutually dependent ; 1 Wms. Saund. 320 e, rule 5 ; 9 Q. B. 164; but each must be capable of performance con currently, i. e. in a moment of time ; the ob ject of both must be an exchange of property or right; and it must be between the imme diate parties to the contract and capable of being performed at the same place ; Langd. Sum. Cont. § 69 ; Northrup v. Northrup, 6
Cow. (N. Y.) 296.
In case of contracts for payment of pur chase money of land by instalments it is said that the promises to pay those instalments which become due before the date set for the delivery of the deed are absolute and independent, and in no way affected by a failure to deliver the deed at the time specified. But where the deed is to be de livered simultaneously with the payment of the last instalment, then on payment of the previous instalments the tender of the deed and the tender of the last instalment become mutual concurrent conditions ; Kane v. Hood, 13 Pick. (Mass.) 281; Sheeren v. Moses, 84 Ill. 448.
Where a contract is made for the sale of goods to be delivered in instalments each to be paid for on delivery, it was held that, the promises were dependent, and the fail ure to deliver one instalment as stipulated released the other party from the obligation to accept future deliveries ; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366. In this case the supreme court review ed the English cases and considered the doc trine of Hoare v. Rennie, 5 H. & N. 19, as better supported by English authority than Simpson v. Crippin, L. R. 8 Q. B. 14, and Brandt v. Lawrence, 1 Q. B. Div. 344; the case relied upon to establish this view was Bowes v. Shand, 2 App. Cas. 455, and it was considered as not contravened by Mersey Co.
v. Naylor, 9 App. Cas. 434, which was ed in the House of Lords in [1909] A. C. 118, as was also Freeth v. Burr, L. R. 5 C. P. 213, both said to be on broader lines than Por dage v. Cole, 1 Wms. Saund. 319. See, also, Hill v. Blake, 97 N. Y. 216; King Philip Mills v. Slater, 12 R. I. 82, 34 Am. Rep. 603 ; Shinn v. Bodine, 60 Pa. 182, 100 Am. Dec. 560; contra, Winchester v. Newton, 2 Allen (Mass.) 492 ; 25 Am. L. Beg. N. S. 59; 21 id. 398, n.
That which is uncer tain, or not particularly designated ; as, if I sell you one hundred bushels of wheat, with out stating what wheat. See CONTRACT.