subsequent. § 614. A condition subsequent is one referring to a Condition future event, upon the happening of which the contract becomes no longer obligatory upon the other party, if he chooses to avail himself of the condition. § 615. Before any party to a contract can require another party to fulfill his obligations under the same, he must himself fulfill all conditions precedent thereto imposed upon him;' and must be ready, and offer, to fulfill all conditions concurrent, so imposed upon him, on the like fulfillment by the other party. 'Oakley v. Morton, 11 Ṁ. Y., 25; Smith v. Brady, 17 N. Y., 173; Cunningham v. Jones, 20 id., 486. Performof condiconcurrent, when es ance, &c., tions precedent and sential. or unlawful void. § 616. Conditions that are impossible or unlawful, within Impossible the meaning of the article on the OBJECT OF CONTRACTS, are conditions void. Conditions are also void if repugnant to the nature of the interest or estate created by the contract.' involving § 617. Conditions involving a forfeiture are to be strictly Conditions interpreted against those for whose benefit they are created.' forfeiture. 'Catlin v. Springfield Ins. Co., 1 Sumner, 440. ARTICLE III. ALTERNATIVE CONTRACTS. SECTION 618. Who may select the alternative. 619. Alternative indivisible. 620. Nullity of one or more of the alternative obligations. select alternative. § 618. If a contract requires the performance of either who may of two or more acts, in the alternative, and it does not appear to whom the parties intended to give the right of selection, the person required to perform has that right.' But he must make his selection within the time fixed by the contract, or if none is fixed, in a reasonable time, or the other party may make such selection. 'Smith v. Sanborn, 11 Johns., 59; Disbrough v. Neilson, 3 Johns. Cas., 81. 2 Sage v. Hazard, 6 Barb., 179; McNett v. Clark, 7 Alterna tives indivisible. Nullity of one or more of the al § 619. The party having the right of selection must select one or the other of the alternatives in its entirety. He cannot select part of one and part of the other, without the consent of the other party.' 'Code La., 2064. $620. If one or more of the alternative obligations of a contract are void, the contract is to be interpreted as obligations. though the other stood alone.' ternative 'Code La., 2065. Executed and execu tory contracts defined. ARTICLE IV. EXECUTED AND EXECUTORY CONTRACTS. SECTION 621. Executed and executory contracts defined. § 621. An executed contract is one of which any part is performed. All others are executory. ARTICLE V. Penalty for non-per formance PENAL CONTRACTS. SECTION 622. Penalty for non-performance of contract, void. 623. When stipulated damages for non-performance is conclusive. § 622. Penalties imposed by contract for any non-performance thereof, are void. But this section does not renof contract, der void such bonds or obligations, penal in form, as have heretofore been commonly used; it merely rejects and avoids the penal clauses. When stipulated damages for formance is 623. The parties to a contract may agree therein upon the amount of damages to be paid by one to the other, upon non-per- a breach of contract, when, from the nature of the case, the conclusive. actual damage sustained thereby cannot be fully ascertained. They may also, when, from the nature of the case, it would be difficult to ascertain such actual damage, agree upon a specified amount as presumptive evidence of the extent of the damage. In every other case an agreement to pay any specific amount as damages, or in any other way to compensate for a breach of contract or duty, in anti- The use of the phrase "liquidated damages TITLE III. OBLIGATIONS IMPOSED BY LAW. SECTION 624. To abstain from injuring another. 625. Restoration of thing given by mistake. 626. Responsibility for wilful acts, negligence, &c. from injuring another. § 624. Every person is bound, without contract, to ab- To abstain stain from injuring the person or property of another, infringing any of his rights. or § 625. One to whom another has given anything by such mistake as is defined in the chapter on CONTRACTS, must restore the same on demand, if the mistake was mutual;' and without demand,' if he knew or suspected or ought to have known, of the mistake of the other." 2 'See Kelly v. Solari, 9 M. & W., 58. * Utica Bank v. Van Gieson, 18 Johns., 485. 'See Code La., 2279, 2280; Code Napoleon, 1376, 1377. § 626. Every one is responsible, not only for the results of his wilful acts, but also for an injury occasioned to another by his want of ordinary care,' unless the latter has, wilfully, or by want of ordinary care, incurred the risk of such injury. The extent of liability in such cases is de fined by the title on DAMAGES. 1 Code La., 2295; Code Napoleon, 1383. Johnson v. Hudson River R. R. Co., 20 N. Y., 69. 21 TITLE IV. EXTINCTION OF OBLIGATIONS. CHAPTER I. Performance and payment. III. Prevention of performance. V. Novation. VI. Rescission. VII. Release. VIII. Alteration of instrument. Obligation extinguished by performance. Payment. Perform ance by third per son. Partial per formance, effect of. CHAPTER I. PERFORMANCE AND PAYMENT. SECTION 627. Obligation extinguished by performance. Payment. 629. Partial performance, effect of. 630. Payment, how made. 631. Payment by one of several joint debtors. 632. Payment to one of several joint creditors. 633. Payment in manner prescribed by creditor. 634. Acceptance of payment through a third person. 635. Creditor's retention of thing which he refuses to receive in payment. 636. Liquidated debts not satisfied by payment of a less sum. 637. Application of payments. § 627. Full performance of an obligation extinguishes it. Performance of an obligation for the delivery of money only, is called payment. § 628. The performance of an obligation by a third person does not extinguish it, though accepted by the creditor as a satisfaction thereof,' unless such performance is made on account of such obligation, with the assent of the debtor. 1 Muller v. Eno, 14 N. Y., 605; Daniels v. Hallenbeck, 19 Wend., 408; Bleakley v. White, 4 Paige, 655. * Kemp v. Balls, 10 Exch., 607; Jones v. Broadhurst, 9 C. B., 173; Belshaw v. Bush, 11 C. B., 191; Simpson v. Eggington, 10 Exch., 845; James v. Isaacs, 12 C. B., 791. § 629. A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is voluntarily retained by the creditor, but not otherwise.' 'Smith v. Brady, 17 N. Y., 187; Cunningham v. Jones, 20 id., 486; Pullman v. Corning, 9 id., 93. how made. § 630. Payment is made by a transfer' of money,' or of Payment, that which is treated by the parties as equivalent to money, by a debtor in extinction of his debt, to a creditor who accepts it for that purpose." 1 Eyles v. Ellis, 4 Bing., 112; Bolton v. Richard, 6 T 'See Sweeting v. Pierce, 7 C. B. (N. S.), 480; Bartlett v. 3 E. g., bank notes, (Hall v. Fisher, 9 Barb., 17; Warren Matthews v. Lawrence, 1 Denio, 212. "Kingston Bank v. Gay, 19 Barb., 460. § 631. Payment by one of several persons who are Payment by jointly liable extinguishes the liability of all of them. § 632. Payment duly made to one of several joint creditors, extinguishes the debt,' except in the case of a deposit made by joint owners who are not partners, which is regulated by the title on DEPOSIT. 'Shepard v. Ward, 8 Wend., 542. 2 "Husband v. Davis, 10 C. B., 650; Innes v. Stephenson, § 633. Payment is complete, and the debt extinguished, upon the debtor's making payment in the manner directed by the creditor, even though the thing paid should never reach the creditor.' Graves v. Amer. Exch. Bank, 17 N. Y., 207; Eyles v. § 634. When the obligation of a third person, or an order upon such person, is accepted as payment, the creditor may rescind such acceptance, if the debtor prevents such person from complying with the order,' or from ful 1 Franklin v. Vanderpool, 1 Hall, 78; Coyle v. Smith, 1 E. one of several joint debtors. Payment to ral joint one of seve creditors. |