few decisions in this matter also adopt the English test, whether there was an intent to repudiate, denying the seller a right otherwise to refuse to continue performance." Under any view a refusal to pay unless some condition is performed which the buyer is not justified in imposing will excuse the seller from his obligation to deliver.72 Nor it seems does the fact that the buyer's refusal to pay for an instalment is due to the assertion of a right to set off a well-founded claim for damages because of a breach of duty by the seller prevent the non-payment from operating in favor of the seller as at least a dilatory defence.73

§ 868. Defect in quality of an instalment.

Where the seller sends one or more instalments of goods inferior in quality to what the contract calls for, there seems

no reason to distinguish the case from the kinds of breach of contract already considered. Even if the seller does not manifest an intent to persist in sending inferior goods, if he has already sent a great quantity of inferior goods, the inevitable consequence is that he will not substantially perform the contract even though all the remaining instalments are what the contract calls for. The buyer should, therefore, be allowed to refuse to go on with the contract unless he has manifested an election to do so by knowingly and voluntarily accepting inferior goods,74 or otherwise.75 The decisions perhaps show less readiness to allow a refusal to go on with the contract on account of a defect in quality than because of the other breaches of contract referred to above. Many cases certainly seem to regard it as no defence to the buyer that a considerable quantity of inferior goods has been furnished.76 But the view here advocated is sup

74 As in Acme Brewing Co. v. Wm. Rahr Sons Co., 10 Ga. App. 564, 73 S. E. 955; Barnette Sawmill Co. v. Fort Harrison Lumber Co., 126 La. 75, 52 So. 222.

75 As by asking that the remaining goods be kept for him. Dolby v. Laramore, 121 Md. 618, 89 Atl. 442.

76 Jonassohn v. Young, 4 B. & S. 296; Wayne's Coal Co. v. Morewood, 46 L. J. Q. B. (N. S.) 746; Guernsey v. West Coast Lumber Co., 87 Cal. 249, 25 Pac. 414; Vallens v. Tillman, 103 Cal. 187, 37 Pac. 213; Habicht v. Gallagher, 172 Mich. 328, 137 N. W. 685; Blackburn v. Reilly, 47 N. J. L. 290, 1 Atl. 27, 54 Amer. Rep. 159; Cahen v. Platt, 69 N. Y. 348, 25 Am. Rep. 203; Scott v. Kittanning Coal Co., 89 Pa. St. 231, 33 Am. Rep. 753; Reeves v. Block, 31 S. Dak. 60, 139 N. W. 780; Ellison v. Flat Top Grocery Co., 69 W. Va. 380, 71 S. E. 391, 38 L. R. A. (N. S.) 539. In Blackburn v. Reilly, 45 N. J. L. 290, 1 Atl. 27, 54 Am. Rep. 159, the plaintiff agreed to sell fiftytwo carloads of bark to be delivered one carload a week until the whole should have been delivered.

Five

carloads were delivered and paid for. It was not used for some time after delivery and the buyer then claiming it was unfit for the purpose for which it had been bought notified the seller not to send any more. The seller brought action, but the parties settled their differences by a further agreement for the delivery of the remainder of the bark weekly, shipments to begin on April 1st or within ten days. No bark was delivered within the time stipulated, and on April 21st the buyer gave notice that he would not receive any bark under the contract. On an action by the seller for damages the court held that the plaintiff could not recover because the circumstances were not such as to warrant an inference that the plaintiff purposed to abandon 、 the contract. Cahen v. Platt, 69 N. Y. 348, 25 Am. Rep. 203, and Scott v. Kittanning Coal Co., 89 Pa. St. 231, 33 Am. Rep. 753, were approved and followed. See also Baer Grocer Co. v. Barber Milling Co., 223 Fed. 969, 139 C. C. A. 449; New Blue Grass Canning Co. v. Dougan, 151 Ky. 522, 152 S. W. 566 (cf. Newton v. Bayless Fruit Co.,

ported by recent decisions of courts of the highest standing," and no doubt many of the decisions, apparently adverse, can be explained on the ground of election or waiver.

§ 869. Right temporarily to withhold performance distinguished from right to refuse absolutely.

So far as concerns the right to refuse performance of later instalments because the contract has been essentially broken in regard to the earlier instalments, the results reached by the majority of the American decisions, it is submitted, are sound. In the discussion of the principles involved there is one matter, however, that is perhaps insufficiently brought out. When one party to an instalment contract violates in any respect his obligations, it is conceivable that the injured. party may take one of two positions. He may assert that he will perform no further until the wrongdoer has made good his omission; or conceivably he may make a more vigorous assertion of right by refusing to go on with the contract in the future, irrespective of reparation for the injury. distinction is between saying, "I will not further perform until you do" and, "I will never perform further because you have not performed on time what you agreed to do." It is submitted that situations often occur where the injured party is justified in taking the former stand when he might

155 Ky. 440, 159 S. W. 968); Corey Co. v. Minch, 82 N. J. L. 223, 82 Atl. 304.

" McDonald v. Kansas City Bolt Co., 149 Fed. 360, 79 C. C. A. 298, 8 L. R. A. (N. S.) 1110. The delivery of defective instalments was held to justify the buyer in refusing to go on with the contract if prompt notice of his election was given to the seller. But in the instant case, the court held that in view of the buyer's receipt of several instalments and apparent satisfaction with an arrangement by which the seller was to replace defective goods, in reliance upon which the seller had made and shipped a further supply, the notice was too late. In Fullam v. Wright &

The

Colton Co., 196 Mass. 474,
82 N. E.
711, where the contract was for 900
cords of wood "largely chestnut,"
to be shipped and paid for in instal-
ments, the shipment of five cars of
wood which was largely soft wood was
held to justify a refusal to go on with
the contract altogether, though the
seller intended to make up the proper
proportion of chestnut and hard wood
in later shipments. See also Bobrick
Chemical Co. v. Prest-O-Lite Co., 160
Cal. 209, 116 Pac. 747; Newton v.
Bayless Fruit Co., 155 Ky. 440, 159
S. W. 968; Enterprise Mfg. Co. v.
Oppenheim, 114 Md. 368, 79 Atl.
1007; Ungerer v. Louis Maull &c. Co.,
155 Mo. App. 95, 134 S. W. 56.

not be justified in taking the latter. Thus if the seller fails to deliver goods on time, the buyer may say, "I will not pay until you deliver" and, he may say also, "I will not take the second instalment until you have delivered the first, for, by the terms of the contract, that was to precede the other." " The mere fact that by the terms of the contract one performance is to precede the other makes the later obligation conditional on the performance of the earlier obligation. It is quite another proposition, however, to assert that because the earlier obligation was not performed on time, the later obligation is excused altogether. This is to assert that not simply performance but the exact time of performance of the earlier obligation is a condition precedent. Whether time in a given case is so vital that a breach of the contract in point of time is a sufficiently substantial or material default to go to the essence of the contract is a question of fact. As has been seen,79 time is generally said to be of the essence in mercantile contracts. The decisions, however, do not warrant the conclusion that in an instalment contract the slightest default in time in regard to any instalment is fatal, but any considerable delay in delivering or accepting goods generally would be. It is in the case where the first breach consists of a failure to pay for one instalment at the time agreed that the distinction here suggested finds its most frequent application. Where the contract provides that one instalment shall be paid for before the next instalment of goods is delivered, it is a most unjust decision if the seller is required to deliver more goods until he has been paid for what he has already delivered.80 It by no means follows, however, that as soon

78 See Pope v. Porter, 102 N. Y. 366, 7 N. E. 304, stated in note 42, supra. 79 See supra, § 845.

80 In National Contracting Co. v. Vulcanite, etc., Co., 192 Mass. 247, 255, 78 N. E. 414, the court said: "The plaintiff's failure to pay for the cement when the bills were due left the defendant with a right to insist at any time that these payments should be made. Such payments might be demanded as a condition precedent to the delivery

of any more cement. Eastern Forge
Co. v. Corbin, 182 Mass. 590, 593, 66
N. E. 419; National Machine & Tool
Co. v. Standard Shoe Machinery Co.,
181 Mass. 275, 279, 63 N. E. 900;
Stephenson v. Cady, 117 Mass. 6;
Wilkinson v. Blount Mfg. Co., 169
Mass. 374, 47 N. E. 1020."

In Savannah Ice Co. v. American
Refrigerator Co., 110 Ga. 142, 35
S. E. 280, the court rightly held that a
stipulation making all bills payable

as default is made in payment for an instalment of goods the seller is entitled to rescind the contract or totally refuse further performance, even though the default in payment continues until the time for the next delivery of goods is due. It might well be that the seller, though entitled to delay further delivery until paid for what he had already delivered, would not be entitled to continue to refuse to deliver after payment was made. The seller's right to take the latter course must depend upon the materiality of the breach.81 It is probable that time in regard to the payment of money on the day when it has been promised is not so vital as a failure to accept or deliver goods on the day promised.82 It is obvious, however, that this is merely a question of degree; delay in the performance of any contractual obligation sooner or later must become so material as to justify a refusal ever to continue performance.83

monthly meant "that credit should be extended only as to such quantities of ice as it might require in a given month during that period, prompt settlement for which should be made at the end of the month as a condition precedent to the extension of further credit."

So in Raabe v. Squier, 148 N. Y. 81, 42 N. E. 516, it was held that the seller of goods under an instalment contract may refuse to deliver the third instalment until the first and second instalments have been paid for, the contract providing for payment of the price of each instalment on delivery thereof.

In Ex parte Chalmers, L. R. 8 Ch. 289, the buyer under an instalment contract had become insolvent. The contract provided for credit, and at the time of the insolvency the price for one instalment was due and unpaid. The trustee in bankruptcy claimed delivery of the next instalment. The court held that he was not entitled to it without tender of the price not only for the instalment demanded but for the previous debt. That is that the seller need not proceed with a subsequent

instalment until the prior debt was paid. See also Ackerman v. Santa Rosa-Vallejo Tanning Co., 257 Fed. 369, (C. C. A. 1919); De Vivo v. Gallerani, 105 N. Y. Misc. 606, 174 N. Y. S. 13; Collins-Plass Thayer Co. v. Hewlett, 109 S. Car. 245, 95 S. E. 510, and see supra, § 829.

81 So held under Sales Act in Ambler v. Sinaiko, 168 Wis. 286, 170 N. W. 270.

82 See supra, § 844, also Atlantic Lumber Co. v. Bucki, 92 Fed. 864, 35 C. C. A. 59, 109 Fed. 1061, 47 C. C. A. 685; Ackley v. Hunter, 166 Ala. 295, 51 So. 964; Beatty v. Howe Lumber Co., 77 Minn. 272, 79 N. W. 1013; Barnett v. Elwood Grain Co., 153 Mo. App. 458, 133 S. W. 856. In the Minnesota case the plaintiff asserted the right totally to rescind the contract on the very day on which the defendant made a breach of its agreement to pay for an instalment of logs. It was rightly held that this was not permissible. It is by no means clear, however, that failure to deliver on the day one instalment of goods already paid for would be fatal to a whole instalment contract.

83 See the discussion in National