169. Performance dependent on approval.-Frequently building contracts contain an express provision providing that the contractor is to receive the agreed price only upon the approval by an architect of the work done. The decisions in reference to such certificates are not harmonious. Ordinarily, the judgment or estimate of such third party is binding on the parties to the contract and the express condition must be literally complied with.98 But everywhere it is held that the fraudulent collusion of one party with the architect will excuse the non-performance of the express condition.99 In the United States, the fraud of the architect or his refusal to exercise an honest judgment, even if done without collusion, excuses a failure to produce the certificate.1

But if the promise is made merely upon the will of the promisor, a mere voluntary obligation arises. Thus, to agree to furnish lumber in such quantities as one may "deem fit and advisable" is to promise to furnish nothing. The promisor may cease furnishing the lumber whenever he pleases.

170. Contracts conditional upon satisfaction.— Performance of a contract may depend upon the

98 Bush v. Jones, 144 Fed. 942.

99 Batterybury v. Vyse, 2 H. & C. 42 (Eng.).

1 In New York it seems that the court may disregard the express condi tion precedent and substitute its judgment or that of the jury for that of the architect if the defects for which the architect refuses to certify seem trivial. This doctrine must not be confused with the rule that in the absence of express conditions a substantial performance of a building contract entitles the contractor to recover the purchase price less proper deductions for the unperformed part. Nolan v. Whitney, 88 N. Y. 648; Keeler v. Herr, 157 Ill. 57. The latter doctrine is one of conditions implied by law in the absence of express conditions. Handy v. Bliss, 204 Mass. 513. See Clarke v. Watson, 18 C. B. (N. S.) 278 (Eng.).

personal satisfaction of one of the parties. Thus, A may agree to paint a portrait of B to B's personal satisfaction. In such a case, A will not recover for his services until B is in fact satisfied. The fact that B is unusually critical is immaterial, since A agreed to take the risk of B's approval. It is not sufficient

that others are satisfied.

3

Similarly, a condition which gives an employer the right to discharge the employee if he considers him incompetent, is a bar to an action for breach of contract. The rules apply to personal taste in mechanical matters as well. The promisor must, however, act honestly and in good faith: his dissatisfaction must be actual and not be feigned. In matters not involving personal taste or comfort, the courts construe the condition as one requiring the satisfaction of a reasonable man. Such are contracts for material and work.*

Thus, where A tells B that he may return the goods he has purchased unless he is satisfied, if the article is one involving personal taste, as a bookcase or an organ, B may return the article if he is dissatisfied. Even if the matter is not a matter of personal taste, where B is made the sole judge, the articles may be returned where the seller can be placed in status quo. But in cases not involving personal taste, even where B is to be satisfied, the courts are particularly careful in requiring at least genuine dissatisfaction, and sometimes adopt the rule of reasonable satisfaction.

2 Gibson v.

Carnage, 39 Mich. 49; Brown v. Foster, 113 Mass. 136. 3 Harder v. Marion Co., 97 Ind. 455.

+ Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387; Tobin v. Kells, 93 N. E. 596 (Mass.).

5

171. Promises to pay.-Where A promises B to pay him when he is able, the courts interpret the promise reasonably. If the promisor once becomes able to pay, the condition disappears and his promise becomes absolute. His subsequent inability will not restore the condition. On the one hand, such promises do not imply ability to pay without embarrassment, or even without crippling the debtor's business. On the other hand, ability to pay cannot be gathered from the fact that the debtor may be in possession of property sufficient to pay the particular debt. If he is plainly insolvent, or if an enforced payment would strip him of practically all means of support, the debtor is not to be considered as being able to pay.R

172. Rules on conditions implied in fact.-Conditions implied in fact are for all practical purposes express conditions and are governed by the same general rules. Thus, if performance by A is conditional upon the happening of an uncertain event, knowledge of which is peculiarly within the possession of B, it is a condition precedent to liability on A's part to perform that B notify him that the event has happened.

In Hayden v. Bradley,' A rented property from B, who agreed to keep it in repair. A was not permitted to recover from B for failure to repair because he had not first notified B that the property needed attention. B was not in a position to know of such

5 Work v. Beach, 13 N. Y. Supp. 678; Denney & Co. v. Wheelwright Co., 60 Miss. 733.

• Tebo v. Robinson, 100 N. Y. 27. 76 Gray 425 (Mass.).

defects and performance on his part was conditional upon notice.

But if A agrees with B to pay B a sum of money when C leaves for Europe, if both have equal opportunities to know of C's departure, B can recover from A without giving him notice.

The rule is as laid down in Vyse v. Wakefield: "Where a party stipulates to do a thing in a certain specific event, which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him." Of course, the parties may expressly provide that notice or demand is necessary to impose a liability to perform on one party. Such an express condition must be performed in order to charge the latter. It need not be in writing, unless the contract so provides."

173. Rules on conditions implied in law.-Where the parties fail to provide a condition which fair dealing requires, the law will imply conditions in the interest of justice. Thus, in every bilateral contract, the promises on the one side are presumed to be the equivalent for all the promises on the other side. Consequently, they are prima facie subject to the implied condition that performance on one side is conditional on a concurrent performance on the other side.

In other words, the two sides of every purely bilat

86 M. & W. 442 (Eng.).

9 Dunn v. Marston, 34 Me. 379.

eral contract, being the equivalent for each other, constitute prima facie mutual and concurrent conditions.

Thus, where each side of a bilateral contract is put into a separate instrument, complete in itself and not referring to the other side, each side will nevertheless be dependent upon the other, if that would be the case if both sides had been incorporated in the same instrument."

In the ordinary case of unilateral contracts, no possibility of conditions being implied by law would seem to exist. But in the case of an option whereby for $50 paid by B to A, A promises in writing to convey a tract of land to B if he pays A $5,000 in sixty days, but B promises nothing, it is possible that the law implies a condition that the deed shall be exchanged for the $5,000 simultaneously."

It makes no difference, however, whether the contract is a specialty or is not under seal, nor is it any objection that the consideration of the promise on each side is the promise and not the performance on the other side. The most common instances of contracts where the two sides of the contract constitute mutual and concurrent conditions, are contracts for the sale of real and personal property.

174. Act on one side requiring time.-Certain distinctions must be borne in mind, for the rule laid down is very general and only holds prima facie. If the promise on the one side is to do specific acts which

10 Hunt v. Livermore, 5 Pick. 395 (Mass.); contra, Moggridge v. Jones, 14 East. 486 (Eng.).

11 Costigan, Performance of Contracts, p. 61.