1. In an executory contract for the manufacture of goods and
their delivery on a specified day, no right of property passes to
the vendee, and, time being of the essence of the contract, he is
not bound to accept and pay for them unless they are delivered or
tendered on that day.
2. The court below having found that the goods had not been
delivered or tendered at the stipulated time nor an extension of
time for the performance of the contract granted, and there being
nothing in the case to warrant the contractor in assuming that any
indulgence would be allowed, the United States was not estopped
from setting up that when the goods were tendered the contract was
at an end.
The facts are stated in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Time is usually of the essence of an executory contract for the
sale and subsequent delivery of goods, where no right of property
in the same passes by the bargain from the vendor to the purchaser,
and the rule in such a case is that the purchaser
Page 96 U. S. 25
is not bound to accept and pay for the goods unless the same are
delivered or tendered on the day specified in the contract.
Addison, Contr. 185; Gath v. Lees,
3 H. & C. 558;
Coddington v. Paleologo,
Law Rep. 2 Exch. 196.
Articles of agreement were made June 1, 1864, between an
assistant quartermaster of the army and the petitioner, who
contracted to manufacture and deliver at the clothing depot of the
army in Cincinnati, by or before the 15th of December then next,
two hundred thousand yards of dark blue uniform cloth, and it was
agreed that deliveries under the contract should be made as
follows: five thousand yards in June, twenty-five thousand yards in
July, twenty-five thousand yards in August, thirty-five thousand
yards in September, fifty thousand yards in October, fifty thousand
yards in November, and ten thousand yards on or before the 15th of
December in the same year.
Other persons were interested with him in the contract at the
time it was made, but one after another retired, until the
petitioner is the only one that retains any interest. His claim is
fully set forth in his petition.
Certain installments of the cloth were delivered, for which the
United States paid the contract price, excepting ten percent
reserved by the United States, pursuant to the written contract.
Neither party complains of any default prior to August of that
year, when the mill in which the cloths were manufactured was
destroyed by fire, and the petitioner, in consequence of the loss,
failed to make the deliveries of the cloth as the contract
required, and the assistant quartermaster called his attention to
the fact, and notified the sureties that he should proceed against
their principal for his delinquency.
Unable to fulfill the terms of the contract, he applied by
letter to the person in charge of the depot to be released from the
obligation, and for the payment of the reserved ten percent. Being
unsuccessful in that application, he visited Washington for the
purpose of applying to the department to be released from the
unfinished part of his contract, and with that view sought an
interview with the quartermaster general, who referred him to the
head of the bureau of clothing, where he was told that there was no
power out of Congress to release him
Page 96 U. S. 26
and that he must furnish the goods. Had the conversation between
the parties stopped there, the case would be destitute of any color
of equity; but the finding of the court below shows that the head
of the bureau remarked that, upon application to the assistant
quartermaster, sufficient time would be allowed to deliver the
Though told that there was no power out of Congress to release
him from his contract, he procured the necessary quantity of such
cloth to be manufactured and applied by letter to the assistant
quartermaster for leave to complete the contract, who referred the
letter to the quartermaster general for decision, and his reply to
the petitioner, as given in the findings, was that he could not
authorize the release from contracts nor the extension of time for
the delivery of articles under a contract, nor any action whatever
not in accordance with their terms and conditions.
Prices in the market fell one half, but the petitioner tendered
the cloths to the assistant quartermaster, who refused to receive
the same because the time for deliveries under the contract had
Damages are claimed by the petitioner, upon the ground that the
time for the delivery of the cloths, as specified in the contract,
was extended, but the Court of Claims decided that the theory of
fact involved in the defense was not proved; that the remarks of
the head of the bureau of clothing were not sufficient to support
that theory, as they might not imply any thing more than the
opinion of that officer as to what the assistant quartermaster
The petition having been dismissed, due appeal was taken by the
petitioner, and he assigns the following errors:
1. That the court erred in holding that time was of the essence
of the written contract.
2. That the court erred in deciding that there was not a valid
extension as to the time for delivering the cloths.
3. That the court erred in overruling the proposition of the
petitioner, that the United States were estopped from denying the
existence of the contract when the goods were tendered.
4. That the court erred in holding that there was not a new
contract, and that such new contract was void because not in
Page 96 U. S. 27
Whether one promise be the consideration for another or whether
the performance, and not the mere promise, be the consideration is
to be determined by the intention and meaning of the parties as
collected from the instrument and the application of good sense and
right reason to each particular case. Instructive rules for the
accomplishment of that purpose have been stated in various
decisions of the court and in treatises of high authority, some few
of which may be consulted in this case to advantage. Chitty, Contr.
Where an act is to be performed by the plaintiff before the
accruing of the defendant's liability under his contract, the
plaintiff must prove either his performance of such condition
precedent, or an offer to perform it which the defendant rejected,
or his readiness to fulfill the condition until the defendant
discharged him from so doing or prevented the execution of the
matter which the contract required him to perform. For where the
right to demand the performance of a certain act depends on the
execution by the promisee of a condition precedent or prior act, it
is clear that the readiness and offer of the latter to fulfill the
condition, and the hindrance of its performance by the promisor,
are in law equivalent to the completion of the condition precedent,
and will render the promisor liable upon his contract. Graves
9 Exch. 709; Morton v. Lamb,
7 Term 125; 2
; 2 Smith, Lead.Cas. 13.
Well considered authorities everywhere agree that a contract may
be so framed that the promises upon one side may be dependent upon
the promises upon the other, so that no action can be maintained,
founded on the written contract, without showing that the plaintiff
has performed, or at least has been ready, if allowed by the other
party, to perform, his own stipulations, which are a condition
precedent to his right of action; nor is it necessary to enter into
much discussion in this case to prove that the described
installments of clothing were required, by the true intent and
meaning of the parties, as expressed in the written contract, to be
delivered at the time and place therein specified and set forth, as
the manifest purpose and object of the contract was to procure
necessary supplies of clothing for an army in the field.
Page 96 U. S. 28
None will pretend that any right of property in the clothing
passed to the United States by the bargain between the parties, and
the rule in such cases is that time is and will be of the essence
of the contract, so long as the contract remains executory, and
that the purchaser will not be bound to accept and pay for the
goods if they are not delivered or tendered on the day specified in
the contract. Addison, Contr. 185.
Suppose that is so, still it is contended by the petitioner that
the time of performance was extended by the remarks of the head of
the bureau of clothing when the contractor applied to be released
from the obligation to complete the unfinished part of his
contract; but the Court is unable to concur in that proposition.
The finding of the court below shows that no such extension was
Conditions precedent may doubtless be waived by the party in
whose favor they are made, but the findings of the court below do
not afford any ground to support any such theory. Cases arise where
either party, in case of a breach of the contract, may be
compensated in damages, and in such cases it is usually held that
the conditions are mutual and independent; but where the conditions
are dependent and of the essence of the contract, it is everywhere
held that the performance of one depends on the performance of
another, in which case the rule is universal that until the prior
condition is performed, the other party is not liable to an action
on the contract. Addison, Contr. 925.
Where time is of the essence of the contract, there can be no
recovery at law in case of failure to perform within the time
stipulated. Slater v.
19 How. 224.
Additional authorities to show that a party bound to perform a
condition precedent cannot sue on the contract without proof that
he has performed that condition, is scarcely necessary, as the
principle has become elementary. Governeur v. Tillotson,
Edw. (N.Y.) Ch. 348.
Conditions, says Story, may be either precedent or subsequent,
but a condition precedent is one which must happen before either
party becomes bound by the contract. Thus, if a person agrees to
purchase a cargo of a certain ship at sea, provided the cargo
proves to be of a particular quality, or provided
Page 96 U. S. 29
the ship arrives before a certain time, or at a particular port,
each proviso is a condition precedent to the performance of such a
contract, and unless the cargo proves to be of the stipulated
quality, or the ship arrives within the agreed time or at the
specified port, no contract can possibly arise. Story, Contr.
Impossible conditions cannot be performed, and if a person
contracts to do what at the time is absolutely impossible, the
contract will not bind him, because no man can be obliged to
perform an impossibility; but where the contract is to do a thing
which is possible in itself, the performance is not excused by the
occurrence of an inevitable accident or other contingency, although
it was not foreseen by the party, nor was within his control.
Chitty, Contr. 663; Jervis v. Tompkinson,
1 H. & N.
Other defenses failing, the petitioner insists that the United
States are estopped to deny that the time of performance was
extended, as set up in his second assignment of error; but the
Court is unable to sustain that proposition, as the remark of the
head of the bureau does not amount to a contract for such an
extension, being nothing more than the expression of an opinion
that the assistant quartermaster would grant the applicant some
Viewed in that light, it is clear that the United States did not
do any thing to warrant the contractor in changing his position,
and, if not, then it is settled law that the principle of estoppel
does not apply. Packard v. Sears,
8 Ad. & E. 474;
Freeman v. Cook,
2 Exch. 654; Foster v. Dawber,
854; Edwards v. Chapman,
1 Mee. & W. 231;
9 Wall. 254.
Estoppel does not arise in such a case unless the party for whom
the service is to be performed induced the other party by some
means to change his position and act to his prejudice in
consequence of the inducement; but in the case before the Court,
the remark made by the head of the bureau was not of a character to
warrant the petitioner to assume that it was agreed that any such
indulgence would be given. Benjamin, Sales, 45; United States
1 Cliff. 310.
Conclusive evidence that the time of performance had expired
Page 96 U. S. 30
is found in the findings of the court, and the petitioner
failing to establish his theory that the time of performance had
been extended, it is clear that there is no error in the