CONDITIONAL PROMISES. Conditional promises are, as regards time of performance, either subsequent, concurrent, or precedent. The effect of a condition subsequent has already been considered. (Ante, Sec. 49o.) The rights of the one to the promise of the other is terminable up on the happening of the specified event.
A condition is concurrent when the rights of the one party are dependent upon his doing, or being prepared to do, something at the same time that the other party performs his promise. Thus, payment and delivery, in a contract of sale in which nothing is said as to the time of payment, are concurrent conditions; and nei ther party can enforce performance by the other with out standing ready and willing to perform his part.
And like concurrent conditions are the mutual promises of the parties, which are each the entire con sideration for the other. Where the mutual promises are the whole consideration on both sides, neither can sue the other without averring that lie has performed, or is ready to perform, his promise.
A condition precedent is defined to be, "a statement or promise, the untruth or non-performance of which discharges the contract." (Anson on Cont. p. 303.) In the case of a promise which is a condition precedent the rights of the one to the promise of the other does not attach until something has been done, or has hap pened, which the parties treated as essential to the contract.
But if the parties do not treat a statement or promise as essential it fails to become such a condition as will discharge the contract and is treated as a warranty, and only gives rise to an action for damages.