The only question from the purely legal point of view is whether
the promisor will be compelled to pay. And the important moment
is that at which that point is settled. All conditions are
precedent to that.
But all conditions are precedent, not only in this extreme sense,
but also to the existence of the plaintiff's cause of action. As
strong a case as can be put is that of a policy of insurance
conditioned to be void if not sued upon within one year from a
failure to pay as agreed. The condition does not come into play
until a loss has occurred, the duty to pay has been neglected,
and a cause of action has arisen. Nevertheless, it is precedent
to the plaintiff's cause of action. When a man sues, the question
is not whether he has had a cause of action in the past, but
whether he has one then. He has not one then, unless the year is
still running. If it were left for the defendant to set up the
lapse of the year, that would be due to the circumstance that the
order of pleading does not require a plaintiff to meet all
possible defences, and to set out a case unanswerable except by
denial. The point at which the law calls on the defendant for an
answer varies [318] in different cases. Sometimes it would seem
to be governed simply by convenience of proof, requiring the
party who has the affirmative to plead and prove it.
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