season, and until the end of November, and that he would sell the butter made to B, to be delivered at a time and place specified, at a certain price per pound, and B agreed to pay for the butter delivered. About two months before the end of dairy season three of the cows ceased to give milk, and A thereupon sold them, having left on his dairy only seventeen cows. Held: A could not sustain an action on the contract.-Oakley vs. Morton, 11 N. Y., p. 25. Where, in a contract for the erection of a building upon the land of another, performance is to precede payment and is the condition thereof, the builder having substantially failed to perform on his part can recover nothing for his labor and materials, notwithstanding the owner has chosen to occupy and enjoy the erection. A party is entitled in Such a case to retain without compensation the benefits of a partial performance.-Smith vs. Brady, 17 N. Y., p. 173; see, also, Cunningham vs. Jones, 20 id., p. 486; Grant vs. Johnson, 5 id., p. 247; Catlin vs. Tobias, 26 id., p. 217; Ellen vs. Topp, 6 Exch., p. 424; and see case of Chater vs. S. F. Sugar Refining Co., 19 Cal., p. 219; also, O'Connor vs. Dingley, 26 Cal., p. 11. "Must be able and offer to fulfill all conditions concurrent," etc.-See Barron vs. Frink, 30 Cal., p. 486; Osborne vs. Elliott, 1 Cal., p. 337; People vs. Jackson, 24 Cal., p. 632; Beecher vs. Conradt, 13 N. Y., p. 108; Dunham vs. Pettee, 8 id., p. 508; Lester vs. Jewett, 11 id., p. 453; Reddington vs. Chase, 34 Cal., p. 666; Salmon vs. Hoffman, 2 Cal., p. 138. When one party offers to fulfill his part in a concurrent obligation and the other refuses or neglects to perform his part, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, even if it is not certain which is obliged to do the first act.-Platt. Covenants, p. 71; 2 Selwyn Nisi P., p. 443; Dougl., p. 698; 18 Eng. L. & Eq., p. 81; Wash. C. C., p. 714; 16 Mo., p. 450. And generally as to the performance of conditions precedent and what they are, see Dudley vs. Thomas, 23 Cal., p. 365; Middleton vs. Ballingall, 1 Cal., p. 446; Brannan vs. Mesick, 10 Cal., p. 95; Cayton vs. Walker, 10 Cal., p. 450; Mesick vs. Sunderland, 6 Cal., p. 297; Kinkead vs. Shreve, 17 Cal., p. 275; Smith vs. Compton, 6 Cal., p. 24; Rogers vs. Cody, 8 Cal., p. 324; Bensley vs. Atwill, 12 Cal., p. 231; Gibbons vs. Scott, 15 Cal., p. 284; Palmer vs. Vance, 13 Cal., p. 553; Folsom vs. Bartlett, 2 Cal., p. 163; Vance vs. Dingley, 14 Cal., p. 53. Concurrent and dependent conditions, see Smith vs. B. & M. R. R., 6 Allen, p. 262. When performance, etc.. excused. Impossible or unlawful conditions void. Conditions involving 1440. If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party. NOTE.-Cornwell vs. Haight, 21 N. Y., p. 462; Skinner vs. Tinker, 34 Barb., p. 333; Crist vs. Armour, id., p. 378; Clark vs. Crandall, 27 id., p. 73; North vs. Pepper, 21 Wend., p. 636; see Crary vs. Smith, 2 N. Y., p. 60. 1441. A condition in a contract, the fulfillment of which is impossible or unlawful, within the meaning of the Article on the Object of Contracts, or which is repugnant to the nature of the interest created by the contract, is void. NOTE.-"Impossible or unlawful."-See Sec. 707, ante, et seq.; Story Cont., Sec. 326. "Repugnant to the nature of the interest created."-De Peyster vs. Michael, 6 N. Y., p. 496. 1442. A condition involving a forfeiture must be forfeiture, strictly interpreted against the party for whose benefit how construed. it is created. NOTE.-Hitchcock vs. Northwestern Ins. Co., 26 N. Y., p. 68; Doe, D, Abdy vs. Stevens, 3 B. & Ad., p. 299; Catlin vs. Springfield Ins. Co., 1 Sumner, p. 440. Compare this Chapter with Sections 707 to 711, ante, and the cases cited in the notes thereto. CHAPTER IV. ALTERNATIVE OBLIGATIONS. SECTION 1448. Who has the right of selection. 1450. Alternatives indivisible. 145. Nullity of one or more of alternative obligations. the right of 1448. If an obligation requires the performance of Who has NOTE.-McNitt vs. Clarke, 7 Johns., p. 465, and 1449. If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose, or, if none is so fixed, before the time at which the obligation ought to be performed, the right of selection passes to the other party. NOTE.-Sage vs. Hazard, 6 Barb., p. 179; McNitt vs. Clarke, 7 Johns., p. 465, and cases cited; Brooke Abr. Dette, p. 159; Choice vs. Moseley, 1 Bailey, p. 136; Townsend vs. Wells, 3 Day, p. 327. Where a note was payable in specific articles, to be delivered at a day named, a timely selection of the articles to be made by the payee, and the latter makes no selection, but prior to the time for payment instructs the maker not to send any until he gives notice what articles he wants, the payee, by such instructions, does not lose his right of selection unless the maker, before such right is exercised, has paid the amount of the note in articles of his own selection; and where the note remained unpaid two years after it became due, and the payee then named the articles, and demanded them, the maker, failing to comply with the demand within a reasonable time, was liable on his contract.-Gilbert vs. Danforth, 6 N. Y., pp. 585–592. Right of how lost. selection, tivos 1450. The party having the right of selection Alternabetween alternative acts must select one of them in indivisible. its entirety, and cannot select part of one and part of another without the consent of the other party. one or more 1451. If one of the alternative acts required by an Nullity of obligation is such as the law will not enforce, or be- of alternacomes unlawful, or impossible of performance, the obligations. tive obligation is to be interpreted as though the other stood alone. NOTE.-Esposito vs. Bowden, 4 Ellis & Black., p. 963. Burden of obligation not transferable. TITLE III. TRANSFER OF OBLIGATIONS. SECTION 1457. Burden of obligation not transferable. 1458. Rights arising out of obligation transferable. 1459. Non-negotiable instruments may be transferred. 1461. What covenants run with land. 1462. Same. 1463. Same. 1464. What covenants run with land when assigns are named. 1465. Who are bound by covenants. 1466. Who are not. 1467. Apportionment of covenants. 1457. The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise, except as provided by Seetion 1466. NOTE. This is as true of covenants running with the land as of any other obligations. The original covenantor remains liable to the covenantee, notwithstanding that the land passes into other hands.-House vs. Burr, 24 Barb., p. 525; Damb vs. Hoffman, 3 E. D. Smith, p. 361; Port vs. Jackson, 17 Johns., pp. 239, 479; Jackson vs. Brownson, 7 id., p. 227. So, where one has agreed to perform a service, he cannot compel the other party to accept the service from a third person, and to release him therefrom.-Robson vs. Drummond, 2 B. and Ad., p. 303. It is not meant by this section to imply that a third person cannot assume the obligations of a contract between other parties, but only that he cannot relieve a party thereto from his obligations without the consent of the creditor. arising 1458. A right arising out of an obligation is the Rights property of the person to whom it is due, and may be out of transferred as such. NOTE.-See Sec. 954, ante: Short vs. Spackman, 2 B. and Ad., p. 962; Hitchcock vs. Northwestern Ins. Co., 26 N. Y., p. 68, and cases cited therein; McKee vs. Judd, 12 N. Y., p. 622; Meech vs. Stoner, 19 id., p. 26; see Cal. Steam Nav. Co. vs. Wright, 6 Cal., p. 258; Taylor vs. Palmer, 31 Cal., p. 240; Doll vs. Anderson, 27 Cal., p. 248; Cochrane vs. Collins, 29 Cal., p. 129; Brown vs. Scott, 25 Cal., p. 194; Lawrence vs. Martin, 22 Cal., p. 173. As to splitting demands.-Marziou vs. Pioche, 8 Cal., p. 536; 7 Cal., p. 260; 6 Cush., p. 282; 13 Mo., p. 300; 11 S. and R., p. 78. obligation transferable. negotiable ments may ferred. 1459. A non-negotiable written contract for the Nonpayment of money or personal property may be trans- instruferred by indorsement, in like manner with negotiable bo transinstruments. Such indorsement shall transfer all the rights of the assignor under the instrument to the assignee, subject to all equities and defenses existing in favor of the maker at the time of the indorsement. NOTE.-Ryan vs. Maddux, 6 Cal., p. 247. And no particular form of assignment is necessary.-Wiggins vs. McDonald, 18 Cal., p. 126; Wheatley vs. Strobe, 12 Cal., p. 92; but see, also, Ritter vs. Stevenson, 7 Cal., p. 388; see Ritter vs. Stevenson, 11 Cal., p. 27; see Lineker vs. Ayeshford, 1 Cal., p. 75; see Sec. 368 (5), Co. Civ. Pro. Cal. running what. with land, 1460. Certain covenants, contained in grants of Covenants estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. land. Such covenants are said to run with the NOTE.-A covenant in a deed, whether express or implied, that the grantor has not sold or incumbered, was held to be a personal covenant, and not running with the land.-Lawrence vs. Montgomery, 37 Cal., p. 183. Certain covenants are implied from the use of the word "grant."-See Secs. 1113, 1115, and notes, ante. |