of granting the right to the injured party to refuse to proceed with the contract. 557. Rule in England Prior to Sales Act.-In England prior to the Sale of Goods Act 1893, the authorities were in conflict as regards the question whether, in case of a contract for the sale of goods to be delivered in periodical instalments, the default of one party in respect to one or more of the stipulated deliveries entitled the other party to rescind the contract and exonerated him from further performance of the contract.18 In several of the earlier cases the broad view was taken that the failure of one party to deliver or to take delivery of the first instalment entitled the other party to throw up the entire contract without liability for damages for failure further to perform the contract.19 This view is exemplified by the case of Hoare v. Rennie (5 H. & N. 19) decided in 1859, where the buyer agreed to buy of the seller a large quantity of iron to be shipped in equal monthly instalments from Sweden during specified months, and it appearing that the seller had failed to ship the required amount during the first month, it was held that the buyer for that reason was justified in refusing to accept the amount actually shipped and in notifying the seller of the termination of the contract. In other English cases, however, the view has ben taken that the mere failure of one party in regard to even the first instalment delivery does not necessarily entitle the other party to declare the contract at an end, unless the circumstances are such as to evidence an intention on the part of the party in default no longer to be bound by the contract, though the cases announcing or applying this view have chiefly been those where the default was on the part of the buyer in taking delivery or paying the price for the instalment delivered or tendered.3 18. Note: 18 Eng. Rul. Cas. 612. 19. Note: 30 L.R.A. 69; 18 Eng. Rul. Cas. 612. 9 Q. B. D. 648, 9 App. Cas. 434, 51 L. J. Q. B. 576, 53 L. J. Q. B. 497. 47 L. T. N. S. 369, 51 L. T. N. S. 627, 23 Eng. Rul. Cas. 504, the effect of which on the earlier English cases is considered and commented on by the court in Ross-Meehan Foundry Co. v. Royer Wheel Co., 113 Tenn. 370, 83 S. W. 167, 3 Ann. Cas. 898, 68 L.R.A. 829, and Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 U. S. (L. ed.) 366. 1. Note: 38 L.R.A. (N.S.) 541. The case referred to in the text is approved and followed by the federal supreme court in Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 U. S. (L. ed.) 366, where the English authorities are carefully reviewed; and the later case of Mersey v. Naylor, 9 Q. B. D. 648, 9 App. Cas. 434, 51 L. J. Q. B. 576, 53 L. J. Q. B. 497, 47 L. T. N. S. 369, 51 L. T. N. S. 627, 23 Eng. Rul. Cas. 504, distinguished on the ground that 3. Mersey Steel, etc., Co. v. Naylor, the latter involved a failure of the 9 Q. B. D. 648, 9 App. Cas. 434, 51 L. buyer to pay the instalment price and J. Q. B. 576, 53 L. J. Q. B. 497, 47 L. not the failure of the seller to make T. Ñ. S. 369, 51 L. T. N. S. 627, 23 delivery. Eng. Rul. Cas. 504; Roper v. Johnson, 2. Mersey Steel, etc., Co. v. Naylor, L. R. 8 C. P. 167, 42 L. J. C. Pl, 65, 28 Notes: 30 L.R.A. 69; 38 L.R.A. (N.S.) 541; 18 Eng. Rul. Cas. 612. 558. Rule in United States Generally.-In this country the broad rule has been announced, following what is said to be the rule of the later English cases, that defaults by one party in making payments or deliveries will not release the other party from his duty to make the other deliveries or payments stipulated in the contract, unless the conduct of the party in default be such as to evince an intention to abandon the contract or a design no longer to be bound by its terms. This rule leaves the party complaining of a breach to recover damages for his injury on the normal principle of compensation, without allowing him the advantage that might inure to him from an option to rescind the bargain. In other cases the view is taken, and this seems to be the view in a majority of the jurisdictions in this country, that the default of either party with respect to one instalment, provided such default has not been waived, justifies the other party in putting an end to the contract. And it has even been held, where the seller has failed to deliver one instalment and refused longer to comply with the contract, that the buyer cannot keep the contract in force and maintain actions with respect to the several instalments as they accrue, but must recover all his damages in one action. The conflict in the authorities has been said to have arisen by the attempts of the courts to apply to this class of contracts the principles relating to contracts generally, whereas they should properly be treated as a class sui generis. If the conduct of the seller or buyer in connection with his default as to one instalment is such as to show a repudiation of Notes: 32 L.R.A. (N.S.) 9; 43 L.R.A. (N.S.) 1013; 3 Ann. Cas. 903; 23 Eng. Rul. Cas. 525. 4. See the preceding paragraph as to the rule in England prior to the English Sale of Goods Act. L. T. N. S. 296, 21 W. R. 384, 23 son Forging Co., 168 Ind. 593, 81 N. Eng. Rul. Cas. 532. E. 574, 11 Ann. Cas. 1045; Enterprise Mfg. Co. v. Oppenheim, 114 Md. 368, 79 Atl. 1007, 38 L.R.A. (N.S.) 548; Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 88 N. E. 24, 21 L.R.A. (N.S.) 864; Ross-Meehan Foundry Co. v. Royer Wheel Co., 113 Tenn. 370, 83 S. W. 167, 3 Ann. Cas. 898, 68 L.R.A. 829; Alpha Portland Cement Co. v. Oliver, 125 Tenn. 135, 140 S. W. 595, Ann. Cas. 1913C 120, 38 L.R.A. (N.S.) 416. 5. Johnson Forge Co. v. Leonard, 3 Penn. (Del.) 342, 51 Atl. 305, 94 A. S. R. 86, 57 L.R.A. 225; Quarton v. American Law Book Co., 143 Ia. 517, 121 N. W. 1009, 32 L.R.A. (N.S.) 1; West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L.R.A. 791; Blackburn v. Reilly, 47 N. J. L. 290, 1 Atl. 27, 54 Am. Rep. 159; Gerli v. Poidebard Silk Mfg. Co., 57 N. J. L. 432, 31 Atl. 401, 51 A. S. R. 611, 30 L.R.A. 61; J. W. Ellison Son, etc., Co. v. Flat Top Grocery Co., 69 W. Va. 380, 71 S. E. 391, 38 L.R.A. (N.S.) 539. Notes: 6 L.R.A. 375; 30 L.R.A. 69 et seq. 6. Ohio Valley Buggy Co. v. Ander Notes: 30 L.R.A. 69 et seq.; 23 Eng. Rul. Cas. 550. 7. Pakas v. Hollingshead, 184 N. Y. 211, 77 N. E. 40, 112 A. S. R. 601, 6 Ann. Cas. 60, 3 L.R.A. (N.S.) 1042. See supra, par. 334, as to successive action by the buyer for damages in case of a contract calling for delivery in instalments. 8. King Phillip Mills v. Slater, 12 R. I. 82, 34 Am. Rep. 603. the contract and his intention no longer to perform, the other party may, even in the jurisdictions which do not recognize fully the right to rescind for default in one instalment, treat the contract at an end." In applying the opposing views a distinction is frequently made between a default on the part of the buyer in making payment or accepting delivery and a default on the part of the seller in making delivery,10 and in view of this fact the two classes of cases are treated separately in the following paragraphs. 559. Majority View as to Default of Buyer.-In this country the broad view taken in the majority of the cases, in the absence of statute to the contrary, is that where a contract of sale provides for deliveries in instalments and the payment of the price of each instalment as delivered or within a stated time thereafter and before the delivery of the following instalment is due default in the payment is made, the seller may rescind the contract, and if he does so cannot be held liable for damages for the failure to make delivery of subsequent instalments.11 The insignificance of the amount withheld by the buyer, if deliberate and not caused by accident or mistake, does not, it seems, affect the seller's right to terminate the contract.12 Likewise it is immaterial that the refusal to pay is put on the ground 10. Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 U. S. (L. ed.) 366. This suggestion of the federal supreme court as to a distinction between the failure of the seller in delivery and the failure of the buyer in payment has been apparently acted on by the circuit court of appeals for the sixth circuit, and it has been there held that the default of the buyer in respect to one instalment will not justify a rescission of the contract by the seller. See Ross-Meehan Foundry Co. v. Royer Wheel Co., 113 Tenn. 370, 83 S. W. 167, 3 Ann. Cas. 898, 68 L.R.A. 829 (referring to other federal authorities). 11. Rodgers v. Wise, 106 Ark. 310, 153 S. W. 253, 43 L.R.A. (N.S.) 1009; Ohio Valley Buggy Co. v. Anderson Forging Co., 168 Ind. 593, 81 N. E. 574, 11 Ann. Cas. 1045; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 A. S. R. 415; Ross-Meehan Foundry Co. v. Royer Wheel Co., 113 Tenn. 370, 83 S. W. 167, 3 Ann. Cas. 898, 68 L.R.A. 829; Alpha Portland Cement Co. v. Oliver, 125 Tenn. 135, 140 S. W. 595, Ann. Cas. 1913C 120, 38 L.R.A.(N.S.) 416. See also Masters v. Barreda, 18 How. 489, 15 U. S. (L. ed.) 466; Veerkamp v. Hulburd Canning, etc., Co., 58 Cal. 229, 41 Am. Rep. 265. Notes: 54 Am. Rep. 624; 59 A. S. R. 292; 30 L.R.A. 35, 72; 32 L.R.A. (N.S.) 2; 43 L.R.A. (N.S.) 1010; 3 Ann. Cas. 901; 11 Ann. Cas. 1049; Ann. Cas. 1913D 1021. See also Henningsen v. Tonopah, etc., R. Co., 33 Nev. 208, 111 Pac. 36, 119 Pac. 774, Ann. Cas. 1913D 1008 (copiously reviewing the case pro and con without deciding the question for the reason that the seller's conduct was held a waiver of any right to rescind he may have had). 12. Note: 32 L.R.A. (N.S.) 8. of a claim by the buyer for damages for breaches by the seller of other contracts or with respect to defaults in prior instalments. 18 560. Minority View as to Default of Buyer.-According to the view taken in a number of jurisdictions the failure of the buyer to take delivery or pay for an instalment is not considered as giving the seller the absolute right to terminate the contract and refuse to deliver the subsequent instalments unless in addition thereto the conduct of the buyer shows an intention on his part to repudiate or no longer to be bound by the contract. 14 Thus in case of an ordinary contract between a wholesale and a retail dealer for the sale of a quantity of coal deliverable in instalments, the failure of the buyer to pay for one instalment has been held not to give the seller a right to rescind the contract and refuse to make delivery of subsequent instalments.15 And it has been held that the refusal of a buyer of wood to keep his agreement to pay for each shipment as received, and his declaration that he would not pay for a shipment theretofore received until the next shipment was received, while he insisted on the complete delivery of the wood, do not constitute such an abandonment of the contract on his part as will justify the seller in refusing to ship any more wood.16 On the other hand it has been held that the question whether a letter by a purchaser of scrap iron to be paid for as each 100 tons was delivered, stating that he would not remit until he had enough of the balance of the contract in his hands to know that he would receive the amount purchased, and that as soon as he had two or three cars above the 100 tons he would remit, amounts to a repudiation of the contract justifying a rescission on the part of the seller, is for the court and that the letter shows an intention to repudiate the contract, justifying a rescission by the seller. And it has been held that a purchaser of a set of books to be delivered one at a time and paid for as delivered is estopped to insist on a continued performance by the seller, where, after he has failed to pay for several books delivered, and has been notified that the contract has been rescinded, he pays no attention to demands for payment for the volumes received, and makes 13. Note: 32 L.R.A. (N.S.) 8. 14. Johnson Forge Co. v. Leonard, 3 Penn. (Del.) 342, 51 Atl. 305, 94 A. S. R. 86, 57 L.R.A. 225; Osgood v.. Bauder, 75 Ia. 550, 39 N. W. 887, 1 L.R.A. 655; Quarton v. American Law Book Co., 143 Ia. 517, 121 N. W. 1009, 32 L.R.A. (N.S.) 1; West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L.R.A. 791; Gerli v. Poidebard Silk Mfg. Co., 57 Ń. J. L. 432, 31 Atl. 401, 51 A. S. R. 611, 30 L.R.A. 61. Notes: 30 L.R.A. 71 et seq.; 32 L.R.A. (N.S.) 1; 43 L.R.A. (N.S.) 1012; 3 Ann. Cas. 902. See also Henningsen v. Tonopah, etc., R. Co., 33 Nev. 208, 111 Pac. 36, 119 Pac. 774, Ann. Cas. 1913D 1008 (reviewing the authorities in other jurisdictions without deciding the question). 15. Osgood v. Bauder, 75 Ia. 550, 39 N. W. 887, 1 L.R.A. 655. 16. West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L.R.A. 791. 17. Johnson Forge Co. v. Leonard, 3 Penn. (Del.) 342, 51 Atl. 305, 94 A. S. R. 86, 57 L.R.A. 225. no demand for future deliveries for more than two years and until the price of the books has been advanced.18 561. Majority View as to Default of Seller.-Where the seller defaults in the delivery of one of the periodical instalments, the great weight of the authority in this country is in favor of the view, which was also taken in the earlier English cases, at least as regards nondelivery of the first instalment,19 that the buyer may declare the contract at an end and refuse to take further instalments without incurring any liability in damages to the seller,20 even though the default in delivery was not with respect to the first instalment. Most frequently the breach of the seller in the delivery of an instalment has involved the time of delivery. Thus in a leading case decided in the federal supreme court it appeared that a contract was made in Philadelphia for the sale of "five thousand tons iron rails for shipment from a European port or ports at the rate of about one thousand tons per month beginning February, 1880, but whole contract to be shipped before August 1, 1880." It was held that the seller was bound to ship one thousand tons approximately in each month beginning with February, and that if only four hundred tons were shipped in February and eight hundred and eighty-five in March, and the buyer accepted and paid for the February shipment on its arrival in March, and in ignorance that no more had been shipped in February, and was first informed of that fact after the arrival of the March shipment and before accepting or paying for the March shipment, he could rescind the contract for the seller's failure to ship the required amount in each of the months of February and March. The right to rescind is not, however, restricted to a default as to time but is equally recognized as regards a default involving quality. Thus it 18. Quarton v. American Law Book Co., 143 Ia. 517, 121 N. W. 1009, 32 L.R.A. (N.S.) 1. 19. See supra, par. 557. 20. Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 U. S. (L. ed.) 366; McDonald v. Kansas City Bolt, etc., Co., 149 Fed. 360, 79 C. C. A. 298, 8 L.R.A. (N.S.) 1110; Enterprise Mfg. Co. v. Oppenheim, 114 Md. 368, 79 Atl. 1007, 38 L.R.A. (N.S.) 548; Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 88 N. E. 24, 21 L.R.A. (N.S.) 864; King Phillip Mills v. Slater, 12 R. I. 82, 34 Am. Rep. 603. See also Lima Locomotive, etc., Co. v. National Steel Castings Co., 155 Fed. 77, 83 C. C. A. 593, 11 L.R.A. (N.S.) 713; Thomas-Huycke-Martin Co. v. Gray, 94 Ark. 9, 125 S. W. 659, 140 A. S. R. 93; Pakas v. Hollingshead, Notes: 51 A. S. R. 615; 30 L.R.A. 1. Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 88 N. E. 24, 21 L.R.A. (N.S.) 864. Note: 23 Eng. Rul. Cas. 550. 2. Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 U. S. (L. ed.) 366. The English as well as many of the American authorities are carefully reviewed in this case. 3. McDonald v. Kansas City Bolt, etc., Co., 149 Fed. 360, 79 C. C. A. 298, 8 L.R.A. (N.S.) 1110; Enterprise Mfg. Co. v. Oppenheim, 114 Md. 368, 79 Atl. H |