The opinion of the Court was delivered by
Gibson, C. J.
That a stipulation for performance, within a-'specified period, of a condition precedent to an action at law, must be strictly satisfied, is an elementary principle which is familiar even to the sciolist; and that the acceptance of subsequent performance is taken for an equivalent for it in equity, is equally known. In this instance, however, the stipulation for á time of performance, was not put, without qualification, into the shape of a condition. The plaintiff covenanted that all things should be ready to put the engines and boilers aboard at a day named, and that the work should be finished within a specified period afterwards, “ unavoidable accidents only excepted it was not finished, however, till four or five months had elapsed beyond the period; but an unavoidable accident was shown to have happened by the discovery of a flaw in one of the boilers, which, if it necessarily occasioned the plaintiff’s performance to be incomplete at the end of the time limited for it, dispensed with it ás a condition by the very words of the contract, and made the subsequent arrangements consistent with the instrument: consequently he might in that state of the case recover on it without averring his own performance by alleging the accident as an excuse *88for it. If, however, as has been alleged in the argument, the accident did not happen till the time for performance had expired, and consequently was not the cause of the delay — a matter determinable by the time when the defect in the boiler was discovered — the plaintiff might still recover on the instrument, according to Jordan v. Cooper, by superadding a count to meet proof of subsequent performance under a parol enlargement of the time of it; and thus he may still proceed securely in an action of covenant adapted to the alternative. This case of Jordan v. Cooper has been erroneously supposed to be overruled by Vickery v. Moore, as a glance at the latter will serve to show. Even were the alteration clearly such, in this instance, as to reduce the contract to parol, the equitable remedy on the instrument, which according to Jordan v. Cooper, the plaintiff may at least elect to have, where strict performance of a precedent condition has been dispensed with, and which he cannot choose but have when he goes for such relief as' is granted in the case of payment after the day — would still be the preferable one, because a specialty is of higher degree- than a simple contract. There are cases however — and Vickery v. Moore was one them — in which the alteration has not regard to the performance of a precedent condition out of time, but to the covenants on which breaches are assigned; and such a case admits not of election as to the remedy, for the whole has been turned into parol. Such was not the case here; and we cannot say that the plaintiff was improperly nonsuited.
Motion disallowed.