Promises and counter-promises made by the respective parties to a contract are (1) independent of each other, or (2) mutually dependent, one upon the other. They are independent of each other if the parties intend that performance by each of them is in no way conditioned upon performance by the other. In other words, the parties exchange promises for promises, not the performance of promises for the performance of promises. A failure to perform an independent promise does not excuse non-performance on the part of the adverse party, but each is required to perform his promise, and, if one does not perform, he is liable to the adverse party for such non-performance.
Subcontractor appellees damaged a wall in the course of their performance of a subcontract, and appellant contractor withheld partial payment as damages for appellee's failure to perform a portion of his work in a workmanlike manner. The lower court awarded damages to appellees. The contractor appealed and the reviewing court reversed.
Did the appellant have a right, under the circumstances, to refuse to make the installment payment?
Judgment was reversed and entered in favor of appellant because appellee's abandonment of the work was a breach that would render him liable to appellant for damages even if the original defects in performance did not. When the subcontractor's employee negligently damaged the contractor's wall, this constituted a breach of the subcontractor's promise to perform his work in a "workmanlike manner," and in accordance with the best practices. There can be little doubt that the breach was material and that the damage to the wall amounted to more than double the payment due to appellee.