an instalment does not have the effect of releasing the seller from further

to cancel the contract for the buyer's failure to pay for the coal as delivered, according to the terms of the contract.

Iowa Brick Mfg. Co. v. Herrick (1905) 126 Iowa, 721, 102 N. W. 787, holding to be severable a contract for the sale by the thousand of a quantity of brick to be delivered in instalments, and settled for in accordance with such deliveries (failure to pay for one instalment does not entitle the seller to rescind the contract as to subsequent instalments. To the same effect see Tuttle-Chapman Coal Co. v. Coaldale Fuel Co. (1907) 136 Iowa, 382, 113 N. W. 827, as to the output of a mine).

performance, unless the circumstances of the default indicate the intention of tract for the sale of all the lumber the purchaser required within a designated time, and all slabs sawed by the seller during a certain season, at a price apportioned to the different articles to be delivered in instalments, and payments to be made with reference to such deliveries, the seller cannot rescind the contract as to undelivered slabs for the failure of the purchaser to pay for instalments of lumber which had been delivered, since the contract is severable as to the lumber and the slabs.

R. C. Bowers Granite Co. v. Farrell (1894) 66 Vt. 314, 29 Atl. 491, holding that a contract by which the seller agrees to furnish monuments to the

Hansen v. Consumers' Steam Heating Co. (1887) 73 Iowa, 77, 34 N. W. 495, holding that a contract is divisible where it is for the sale, at a designated price per ton, of all the coal the purchaser should need in his business during a certain period of time, the purchase price to be paid monthly according to the amount delivered; and hence the contract cannot be rescinded by the seller for default by the buyer in paying for instalments delivered.

Myer v. Wheeler (1884) 65 Iowa, 390, 21 N. W. 692, holding that a contract is severable where it is for the sale of a stated number of carloads of grain at a designated price, to be paid as each carload is delivered, the cars to be delivered at different times; hence the seller is not relieved of performance by the refusal of the purchaser to pay for the carload which has been delivered.

Collins v. Swan-Day Lumber Co. (1914) 158 Ky. 231, 164 S. W. 813, holding that the failure to pay for an instalment of logs according to the contract does not entitle the seller to rescind.

Longfellow v. Huffman (1909) 55 Or. 481, 104 Pac. 961, holding that a contract for the sale of the increase of sheep for a series of years at a certain price per head, to be paid as they are taken, is severable, and the failure of the purchaser to tender the purchase money and take the lambs does not relieve the seller from performance in a subsequent year.

Tucker v. Billing (1881) 3 Utah, 82, 5 Pac. 554, holding that under a con

specifications, and the purchase price being agreed upon, is severable as to each monument ordered, and hence the failure of the purchaser to pay for one monument, according to the contract, does not relieve the seller from his obligation to furnish other monuments as ordered, after the purchase price has been agreed upon.

Campbell & C. Co. v. Weisse (1904) 121 Wis. 491, 99 N. W. 340, holding to be apportionable a contract for the sale of a quantity of bark, to be delivered in instalments, payment to be made within a certain time following its delivery; hence, the default of the buyer in paying for an instalment, while it entitled the seller to enforce payment therefor, yet did not release him from the obligation to make further deliveries.

Simpson v. Crippen (1872) L. R. 8 Q. B. (Eng.) 14, 42 L. J. Q. B. N. S. 28, 27 L. T. N. S. 546, 21 Week. Rep. 141, holding that the failure of the buyer to receive and pay for the first instalment of coal, which he was to take monthly, did not relieve the seller of the obligation to complete the contract as to subsequent instalments.

Mersey Steel & I. Co. v. Naylor (1884) 9 App. Cas. 434, 53 L. J. Q. B. N. S. 497, 51 L. T. N. S. 637, 32 Week. Rep. 989, 23 Eng. Rul. Cas. 504; Ex parte Chalmers (1873) L. R. 8 Ch. (Eng.) 289, 42 L. J. Bankr. N. S. 37, 28 L. T. N. S. 325, 21 Week. Rep. 349; Bloomer v. Bernstein (1874) L. R. 9 C. P. (Eng.) 588, 43 L. J. C. P. N. S. 375, 31 L. T. N. S. 306, 23 Week. Rep. 238.

Doner v. Western Canada Flour

the buyer to repudiate the entire contract. In this regard, however, it has been held that the refusal of the buyer to make payments for instalments delivered until the full completion of the contract, being in direct violation of the express or implied terms thereof, is equivalent to a refusal to be further bound by the terms of the contract, and hence authorizes the seller to cease making deliveries thereunder; and such refusals may also furnish a basis from Mills Co. (1917) — Ont., 41 D. L. R. 476, holding to be severable a contract for the sale of different grades of flour, to be delivered in instalments, such portion of each grade to be delivered at any particular time as the buyer subsequently designated, payment to be made at a certain time after each delivery, with the right reserved to the seller to require cash if the buyer did not pay according to agreement. The failure of the buyer to pay for a portion of an instalment was held not to entitle the seller to rescind the contract. Approved in Sierichs v. Hughes (1918) — Ont. 43 D. L. R. 297.

64 Midland R. Co. v. Ontario Rolling Mills (1884) 10 Ont. App. Rep. 677, holding that the refusal of the buyer to pay for an instalment of goods did not entitle the seller to rescind, unless the refusal amounted to a repudiation of the contract.

Mersey Steel & I. Co. v. Naylor (Eng.) supra, holding that a contract for the sale of a quantity of steel, payment to be made as delivered, to be delivered in monthly instalments, was entire, and the provision as to payment did not constitute such payment a condition precedent of the entire contract; hence, failure to pay for instalments as required by the contract did not relieve the seller of the duty of making further deliveries, where the failure did not indicate any intention to repudiate the contract by the buyer.

Welsh v. Michigan Maple Co. (1910) 161 Mich. 16, 125 N. W. 692, holding that a contract for the sale of a quantity of lumber, to be delivered in instalments and paid for according to such delivery, is severable as to each shipment, and the failure of the purchaser to pay for one instalment according to the contract does not relieve the seller from furnishing subsequent instalments, it not appearing 2 A.L.R.-43.

which the conclusion may be drawn that the contract has been rescinded by the parties.65 And even the mere refusal of the buyer to accept or pay for the goods tendered to him may, in some circumstances, justify the inference that he repudiates the entire contract, and thereby entitles the seller to rescind the contract as a whole.66 And even though a contract of this character is severable, nevertheless where the buyer was to settle for instalments that the purchaser intended by such default to abandon the contract.

65 Stevens v. Forrest (1914) 183 Mich. 223, 149 N. W. 982, holding that a contract is severable where it is for the sale of a quantity of coke, to be delivered in carload lots, settlement to be made by the carload as delivered, and the persistent refusal of the purchaser to make such settlements, and his atTempt to change or modify the contract, entitled the seller to rescind the contract.

State, Skillman Hardware Mfg. Co., Prosecutor, v. Davis (1890) 53 N. J. L. 144, 20 Atl. 1080, holding that under a contract for the sale of iron castings by the ton, to be delivered in instalments, in the absence of an express stipulation as to time of payment, payment is to be made as the instalments are delivered, and the contract is apportionable in respect to such payments. The court said that the question whether the contract is entire or divisible, in respect of the question of payment of the consideration, cannot be solved by the application of any fixed legal standard, but it depends upon the intention of the parties, to be gained from all the cir cumstances surrounding the agreement, and from the face of the contract, if in writing.

66 Wm. Knapp & Co. v. San Joaquin Cigar Co. (1909) 10 Cal. App. 325, 101 Pac. 929.

In Freeth v. Burr (1874) L. R. 9 C. P. (Eng.) 208, 43 L. J. C. P. N. S. 91, 29 L. T. N. S. 773, 22 Week. Rep. 370, it is said that the true question in this class of cases is whether or not the acts and conduct of the parties indicate an intention no longer to be bound by the contract. Nonpayment on the one hand, and nondelivery on the other, may amount to such an act, or may be evidence of an intention wholly to abandon the contract.

by his note, and he refused to execute his note on the claim that he would not execute any more notes, this amounted to a repudiation of the contract as a whole, and entitled the seller to rescind it.67 So, where the refusal by the buyer to pay a small balance on an instalment of lumber was based upon an untenable claim that he was obliged only to pay for lumber according to the measurements at his mill, delivery having been made at another point, it constituted such a repudiation of the contract as a whole as to entitle the seller to rescind it.68

It has also been held that the fact that an article sold by the ton was to be delivered in instalments and settled for within a designated time after its delivery does not split the contract into as many contracts as there are to be deliveries, and that the failure of the buyer to accept and pay for one delivery did not relieve the seller of the

67 Nichols V. Scranton Steel Co. (1893) 137 N. Y. 471, 33 N. E. 561.

68 Murphy v. Sagola Lumber Co. (1905) 125 Wis. 363, 103 N. W. 1113.

69 Mersey Steel & I. Co. v. Naylor (1884) 9 App. Cas. 434, 53 L. J. Q. B. N. S. 497, 51 L. T. N. S. 637, 32 Week. Rep. 989, 23 Eng. Rul. Cas. 504.

70 Rodgers v. Wise (1913) 106 Ark. 310, 43 L.R.A. (N.S.) 1009, 153 S. W. 253.

71 Walton v. Black (1876) 5 Houst. (Del.) 149.

Crane Co. v. Columbus Constr. Co. (1896) 20 C. C. A. 233, 46 U. S. App. 52, 73 Fed. 984, writ of error dismissed in (1899) 174 U. S. 600, 43 L. ed. 1102, 19 Sup. Ct. Rep. 721, holding that where the purchaser repudiates in part a contract for the sale of articles to be delivered in instalments, each instalment to be paid for in cash when delivered, he cannot insist upon performance as to the other instalments (sale of pipe of a certain quality at a designated price; action by purchaser to recover damages for breach of warranty of quality).

Harris Lumber Co. v. Wheeler Lumber Co. (1909) 88 Ark. 491, 115 S. W. 168, holding that a contract is severable to the extent that it is for the sale of several cars of lumber, to be shipped at different times, each car to be billed separately and the purchase price thereof to be due and pay

obligation of making subsequent deliveries, payment not being a condition precedent to the entire contract.69

In this regard it has been held that a contract of this character is not indivisible, and hence that the mere failure of the buyer to pay for an instalment delivered does not entitle the seller to rescind, where by affirmative action the buyer indicates his intention and desire to keep the contract alive; nor can the seller refuse to make further deliveries and recover the contract price, since under such circumstances both of the parties have breached the contract, and neither can sue thereon.70

However, such a contract is entire in the sense that the buyer cannot insist upon further delivery while in default for deliveries already made thereunder. Nor can he, while thus in default, successfully base a claim for breach of contract on the seller's refusal to make further deliveries.72

able according to the time of delivery, and that it is entire to the extent that each party is entitled to complete performance; hence, the purchaser cannot insist upon further shipments when he is in default in payment for prior deliveries.

Kingdom v. Cox (1848) 5 C. B. 522, 136 Eng. Reprint, 982, 17 L. J. C. P. N. S. 155, 12 Jur. 336, holding that a contract for the sale of a designated number of tons of iron girders, to be delivered in instalments after the purchaser has furnished drawings for the different girders, is entire; and where he fails to furnish drawings within a reasonable time he cannot maintain an action, based upon the refusal of the seller to furnish a small portion of the girders.

Faber v. Hougham (1900) 36 Or. 428, 15 Pac. 547, 1111, holding that the buyer cannot sue for the seller's breach of the contract, while he is in default in paying for instalments of goods delivered to him.

72 Los Angeles Gas & E. Co. v. Amalgamated Oil Co. (1909) 156 Cal. 776, 106 Pac. 55, holding that an agreement to furnish all of the oil used by another in his business, and the agreement of the latter to purchase all of such oil, are necessarily reciprocal. Each goes to the essence of the agreement. Hence, the contract is an entirety, although deliveries are in in

b. Recovery of purchase money by seller.

The question as to the effect of the divisible character of the contract on the right of the seller to recover for instalments of goods furnished, where he has refused to furnish further instalments on the ground of default of the buyer in paying for instalments delivered, is very similar to that already considered as to the right of the seller to rescind the contract for the default of the buyer in this regard; and the cases heretofore cited, which sustain the right of the seller to rescind, are likewise authority for his right to recover for instalments actually delivered.

But, as already pointed out, in some jurisdictions the rule obtains that, even though a seller is in default in delivering a portion of the goods sold, he may nevertheless recover for the goods actually delivered, subject to the buyer's right to recoup his damages for a breach of the contract, based upon the stalments at certain prices per barrel, to be paid for with reference to the instalments delivered, and payments of the instalments may be enforced separately. The purchaser therefore cannot hold the seller for failure to deliver instalments of oil, where he was at the time in default in payment of instalments theretofore delivered.

Badger State Lumber Co. v. G. W. Jones Lumber Co. (1909) 140 Wis. 73, 121 N. W. 933, holding that a contract for the sale by the thousand feet of a quantity of lumber, to be taken in carload lots, is not entire, and the acceptance of one carload by the purchaser does not change the executory contract into an executed one so that the seller can maintain an action to recover the purchase price for the balance of the lumber, where the purchaser repudiated the contract and refused to take more lumber.

Withers v. Reynolds (1831) 2 Barn. & Ad. 882, 109 Eng. Reprint, 1370, 1 L. J. K. B. N. S. 30, holding that where the purchaser of a quantity of straw at a certain price per load, to be delivered in instalments, refuses to pay for it as delivered, he breaches the contract, and cannot recover damages for the failure of the seller to deliver the balance of the instalments, although the contract is silent as to the time of payment; since the circum

seller's refusal to make further deliveries; hence, it follows that, where this latter rule obtains, even though a case may deny the right of the seller to rescind the contract for failure of the buyer to pay for the instalments of goods delivered thereunder, it might nevertheless sustain the seller's right to recover the goods actually delivered, subject to the buyer's right to recoup. In addition to the cases cited on the seller's right to rescind, reference is also made to the cases which hold that a contract for the sale of goods to be delivered in instalments, and paid for in accordance with such deliveries, is apportionable, in the sense that the seller may maintain an action to recover the value of the goods delivered, although refusing to make further deliveries, on the ground of the default of the buyer in paying for deliveries. theretofore made.73

But upon the theory that contracts for the sale of a quantity of goods at stances raise an implication that payment is to be upon delivery.

Masters v. Barreda (1856) 18 How. (U. S.) 489, 15 L. ed. 466; Union Pressed Brick Co. v. Fultonham Brick & Drain Tile Co. (1902) 50 C. C. A. 615, 112 Fed. 920; Minaker v. California Canneries Co. (1902) 138 Cal. 239, 71 Pac. 110; Southwestern Stage Co. v. Peck (1875) 17 Kan. 271; Webster v. Moore (1908) 108 Md. 572, 71 Atl. 466; Baltimore v. Schaub Bros. (1903) 96 Md. 534, 54 Atl. 106; Jenness v. Shaw (1876) 35 Mich. 20; Barnes v. Denslow (1890) 56 Hun, 640, 9 N. Y. Supp. 53, affirmed in (1892) 130 N. Y. 687, 30 N. E. 67; Price v. New York (1905) 104 App. Div. 198, 93 N. Y. Supp. 967, appeal dismissed in (1905) 182 N. Y. 516, 74 N. E. 1124; Bright v. Dean (1888) 18 N. Y. S. R. 1019, 2 N. Y. Supp. 658; Partridge v. Gildermeister (1864) 3 Abb. App. Dec. (N. Y.) 461; Granite Mills v. Keystone Oil Cloth Co. (1899) 15 Montg. Co. L. Rep. (Pa.) 36; Easton v. Jones (1899) 193 Pa. 147, 44 Atl. 264.

And see cases cited in note 47.

78 Richards v. Shaw (1873) 67 III. 222; Waldschmidt v. Marsh & B. Co. (1917) 203 Ill. App. 365.

Mound Oil Co. v. F. W. Heitmann Co. (1912) Tex. Civ. App. —, 148 S. W. 1187, holding that where no time is fixed for delivery of a quantity of

c. Recovery by seller for breach of contract.

A contract for the sale of an indefin

pipe, although the contract is entire, the seller may nevertheless recover for the portion of the pipe delivered, which the buyer refuses to accept on the untenable ground that it is of a poor quality.

See Fleisher v. Abbott (1915) 137 C. C. A. 529, 222 Fed. 211, holding that, under a sale by the pound of different qualities of wool to be graded by the purchaser, the seller cannot accept the grading by the purchaser as to some qualities, and reject it as to the other qualities, but he must either accept or reject it as a whole. This decision was influenced by proof of a custom among wool buyers to accept or reject as a whole the grading of wool.

74 William P. Kelley Brick Co. v. Clay Product Supply Co. (1907) 32 Pa. Super. Ct. 408, holding to be entire a contract for the sale of a quantity of brick by the thousand, to be delivered in instalments (denying right of seller to recover for balance due for deliveries made, after refusal to make further deliveries).

And see Campbell & C. Co. v. Weisse (1904) 121 Wis. 491, 99 N. W. 340, supra, note 63.

74a Magnolia Compress Co. v. Smith (1905) 75 Ark. 503, 88 S. W. 563, holding that a contract for the sale of a designated quantity of an article, with the provision that the buyer should purchase at the same price any more of the same article which he might need in constructing a certain building, is severable, and the failure of the buyer to purchase the balance of his needs of the seller does not entitle the latter to rescind the contract and sue on a quantum meruit for the quantity delivered. Rodgers v. Wise (1913)

ite number of cattle at a designated price per hundred pounds, to be delivered in instalments, while said to be entire in a sense, was nevertheless held to be divisible into several contracts, as regards the remedy, for each of which a separate action would lie in favor of the seller, without tendering full performance.7 But in other cases contracts somewhat similar have been held entire so as to enable the seller to maintain an action for breach of the contract as a whole, upon the refusal of the buyer to receive or pay for an instalment.76

75

106 Ark. 310, 43 L.R.A. (N.S.) 1009, supra, note 70.

75 Coleman V. Hudson Sneed (Tenn.) 463.

(1854) 2

76 Harper v. Baird (1900) 3 Penn. (Del.) 110, 50 Atl. 326, holding that a contract for the sale of a quantity of goatskins of a particular designation, for a lump sum, is entire (action by the seller for breach of contract by the purchaser in refusing to receive subject-matter of the sale).

Robson v. Hale (1913) 139 Ga. 753, 78 S. E. 177, holding that a contract is entire, where it is for the sale of a quantity of grain at a designated price per bushel, to be delivered at different times, and the purchaser is liable for breach of the contract, by notifying the seller that he will refuse to receive the remaining instalment. Bullard v. Eames (1914) 219 Mass. 49, 106 N. E. 584, holding that a contract is entire where it is for the manufacture of a number of sets of automobile controllers or regulators, to be delivered in weekly instalments, and paid for according to such deliveries (action by seller for breach of contract).

Salomon v. Corbett (1899) 38 App. Div. 262, 57 N. Y. Supp. 18, holding that a contract is entire where it is for the sale of a phaeton, brougham, and sleigh, although the price of each vehicle is specified, the aggregate price being also specified, and the payments provided for being to apply generally on the whole sum; and where the purchaser takes one of the vehicles and fails to take the others, it constitutes a breach of the contract for which damages may be recovered by the seller.