pendent, that is when the contract as a whole is made up of a series of contracts, a breach of one of them does not discharge the others. On the other hand, when a contract is indivisible and the promises mutually dependent a breach of performance by one of the parties not only gives the other party a right of action for damages, but also discharges that party from performance.

There are some contracts where it is not easy to determine whether they are divisible or indivisible. Thus, where A contracts to sell B 600 bushels of corn in three monthly installments of 200 bushels each, the courts are not agreed as to whether the contract is divisible or indivisible. The Supreme Court of the United States holds that such a contract is indivisible, and that in consequence a breach of performance as to the delivery of one of the installments discharges the whole contract. An English court, on the other hand, has held that such a contract is divisible.1

138. Independent promises.-Whether the promises in a contract are independent or not depends upon the intention of the parties; and the test applicable in determining this intention is the order in which the several obligations are to be performed, considered in the light of surrounding circumstances. A leading English case holds: "Whether covenants be or be not independent of each other must depend on the good sense of the case, and on the order in which the several things are to be done." A North Carolina case has a similar decision:"

The contract may be entire or severable, according to the circumstances of each particular case, and the criterion is to

1 Ritchie v. Atkinson, 10 East 295, 10 Rev. Rep. 307; Blackburn v. Reilly, 47 N. J. L. 290, 1 Atl. Rep. 27, 54 Am. Rep. 159.

2 Morton v. Lamb, 7 Term R. 125.

3 Wooten v. Walters, 110 N. C. 251, 14 S. E. R. 734.

be found in the question whether the whole quantity—all of the things as a whole-is of the essence of the contract. If it appear that the purpose was to take the whole or none, then the contract would be entire; otherwise, it would be severable. On the whole, the weight of opinion and the more reasonable rule would seem to be that, where there is a purchase of different articles, at different prices, at the same time, the contract would be severable as to each article, unless the taking of the whole was rendered essential either by the nature of the subject-matter or by the act of the parties. This rule makes the interpretation of the contract depend on the intention of the parties as manifested by their acts and by the circumstances of each particular case.

The question, however, is one of considerable difficulty and one upon which the decisions are conflicting.1

139. Conditional promises.-Promises are sometimes subject to a condition. The condition may be precedent, concurrent or subsequent. When it is precedent its non-performance may or may not discharge the contract. Whether it does so or not depends upon the nature of the condition. If the condition is merely suspensory or floating in its nature its non-performance does not discharge the promisor. It merely suspends the operation of the promise. Thus, in the case of a fire insurance policy the insurer's liability is conjectural, and the condition precedent upon which his promise to pay rests is merely suspensory.

However, when the condition precedent is not merely suspensory in its nature but vital, as where one party's promise is conditional upon that of the other party, the breach of the condition not only gives the injured party a right of action for damages, but also discharges him from his promise.

1 More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Hamilton v. Home Ins. Co., 137 U. S. 370, 11 S. Ct. Rep. 133, 34 L. Ed. 708.

Concurrent conditions are those which according to the terms of the contract are to operate simultaneously; one of the parties agrees to do a certain thing in consideration that the other party do at the same time something else. Before an action for damages arises the party suing must have done, or have been ready and willing to do, his part. And a breach by either party discharges the other from his obligation to perform his promise.

A condition subsequent has a very different effect from that of either a condition precedent or a condition concurrent. It has the effect of terminating the rights of the promisee upon the happening of a specified event. Thus, where a master employs a servant for a definite term and the contract contains a condition that either party may terminate the contract by giving the other party a month's notice the condition is a condition subsequent.

140. Breach of a subsidiary promise. The breach of a subsidiary promise in a contract gives rise to an action for damages, but does not, as a rule, discharge the contract. Thus, where A sells B a horse which he believes to be sound and which he warrants as such, but which is unsound, B has a right of action for damages, but the breach of warranty does not discharge the contract. A warranty is merely a promise to indemnify, whereas a condition, the breach of which constitutes a discharge, goes to the essence of the contract.

It is sometimes difficult to determine whether a particular term of a contract is a warranty or a condition. The test is the intention of the parties and this is to be determined by giving effect to the construction of the contract and taking into consideration the surrounding

circumstances. This view is held in a leading English case: 1

Parties may think some matter, apparently of very little importance, essential, and, if they sufficiently express an intention to make the literal fulfillment of such thing a condition precedent, it will be one; or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent, is not really vital, and may be compensated for in damages, and, if they sufficiently express such intention, it will not be a condition precedent.

141. Anticipatory breach.-Renunciation of an executory contract can occur either before or at the time for performance. When one of the parties renounces the contract before the time of performance his act may or may not discharge it. Its effect depends upon the way in which the other party treats it. It is optional with him. He may regard the contract as discharged and sue at once for the breach, or wait until after the time of performance. The renunciation in such case does not ipso facto discharge the contract for the reason that the promisee has the right to have the relation created by it maintained until the time of performance. An English case holds: 2

The promisee has an inchoate right to the performance of the bargain, which becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his interests.

1 Bettini v. Gye, 1 Q. B. Div. 183.

2 Frost v. Knight, L. R. 7 Exch. 111.

The renunciation, however, to be effectual, must be positive and unqualified. A mere intention not to perform is not sufficient.

When one of the parties to a contract renounces it in the course of its performance the other party is discharged. Moreover, the latter is entitled to bring an action for damages at once. An English case says:

1

When there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, gives notice to the vendor not to manufacture any more as he has no occasion for them and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of contract.

EXAMPLES

124. A offers a certain horse for $200. B accepts the offer, Before the horse is delivered A renounces the contract. B is discharged from his obligation to pay for the horse, and he may sue A for damages for the breach.

125. A school board employs a teacher for eight months. Before the school opens, the board informs him that his services will not be required. The teacher may treat the contract as discharged and sue the board for damages for the breach, or wait until the end of the term and sue on the contract for his salary. It is to be observed, however, that in the latter case the teacher must hold himself in readiness to perform the services agreed upon; and furthermore, that in case he be offered a similar position in the same locality and refuse to accept it, the amount he would have made had he not refused will be deducted from that specified in his contract and he will be entitled only to the balance.

1 Cort v. Railway Co., 17 Q. B. Div. 127.