"In Kauffman v. Ræder, 108 Fed. 171, 179, 47 C. C. A. 278, Sanborn, J., said: "The breach of a covenant of the first class-a dependent covenant, one which goes to the whole consideration of the contract-gives to the injured party the right to treat the entire contract as broken and to recover damages for a total breach. Leopold v. Salkey, 89 Ill. 312, 31 Am. Rep. 93; Keck v. Bieber, 148 Pa. 645, 24 Atl. 170; Parker v. Russell, 133 Mass. 74; Railroad Co. v. Van Deusen, 29 Mich. 431; Richmond v. Railroad Co., 40 Iowa, 264, 275. But a breach of a covenant of the second class, an independent covenant, a covenant which does not go to the whole consideration of the contract and is subordinate and incidental to its main purpose, does not constitute a breach of the entire contract, does not authorize the injured party to rescind the agreement, but he is still bound to perform his part of it, and his only remedy is a recovery of damages for the breach. Union Pac. Ry. Co. v. Travelers' Ins. Co., 83 Fed. 676, 679, 28 C. C. A. 1, 4, 49 U. S. App. 752, 759; Pordage v. Cole, 1 Saund. 320, note; Campbell v. Jones, 6 Term. R. 570, 573; Surplice v. Farnsworth, 7 Man. & G. 576, 584; Obermyer v. Nichols, 6 Bin. 159, 160, 164; Burnes v. McCubbin, 3 Kan. 221, 226, 87 Am. Dec. 468; Butler v. Manny, 52 Mo. 497, 506; Turner v. Mellier, 59 Mo. 526, 536; Pepper v. Haight, 20 Barb. 429, 440; Central Appalachian Co. v. Buchanan, 43 U. S. App. 265, 20 C. C. A. 33, 73 Fed. 1006."

In Oscar Barnett Foundry Co. v. Crowe, 219 Fed. 450, 455, 135 C. C. A. 162, the court said, citing Kauffman v. Ræder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; Howe v. Howe & Owen Ball Bearing Co., 154 Fed. 820, 83 C. C. A. 536; Neenan v. Otis

Elevator Co., 180 Fed. 997, 1,000: "While every breach of a contractual obligation confers a right of action upon the injured party, it is thus seen that every breach does not operate as a discharge. A breach which permits a rescission of the contract, discharging the other party, must be of an absolute part of the obligation—that is, a breach of that part of the obligation which goes to the whole consideration, and may be made, first, when the party renounces his liabilities under it; second, when by his own act he makes it impossible to perform; or, third, by failing fully to do what he promised. When this occurs, the party offended against may consider the contract rescinded and himself exonerated, or sue upon the contract for such damages as he has thereby sustained."

In Fearon v. Aylesford, L. R. 12 Q. B. D. 539, 548, there was a suit for an annuity under a separation deed by which the annuitant covenanted not to molest the defendant. The court said: "Thus we arrive at the main question in the case, viz., whether there being molestation it is a defence to the claim for arrears of the annuity. . . . The decisions in the cases of Charlesworth v. Holt, L. R. 9 Ex. 38, and Grant v. Budd, 30 L. T. (N. S.) 319, seem to me to point distinctly to the conclusion that, where there is a covenant such as this in a separation deed, for payment of an annuity during the life of the wife, it is an independent covenant unless made dependent by express words. There may be cases of acts absolutely inconsistent with, and amounting to an entire frustration of, the main object of the deed, viz., separation, which may perhaps admit of different considerations from those applicable

to the present case, but so far as the question as to the construction of these covenants is concerned, I am of opinion that they are independent covenants."

In Westerman v. Champion Fiber Co., 162 N. C. 294, 78 S. E. 221, the plaintiff contracted to cut and cord 50,000 cords of wood, and the defendant agreed to build the shacks for his hands. The defendant's failure to build the 8 or 10 ordinary shacks necessary to house plaintiff's hands was held not so material a breach as to justify plaintiff in refusing to perform.

In Rioux v. Ryegate Brick Co., 72 Vt. 148, 47 Atl. 406, the court said: "That plaintiff did not comply with an implied provision in a brickmaking contract to buy all supplies of defendants is not a breach going to the essence of the contract, and hence will not defeat plaintiff's recovery for what he had done under the contract." See also Tichnor v. Evans, (Vt. 1918), 102 Atl. 1031.

In Crampton v. McLaughlin Realty Co., 51 Wash. 525, 529, 99 Pac. 586, 21 L. R. A. (N. S.) 823, the court held covenants in a contract for the sale of land relating to building restrictions and the making of street improvements by the grantors, independent of the covenants to convey and pay the purchase price, saying:

"The covenant to make improvements goes only to a part of the consideration, and the fact that the date for completing the improvements and the date of payment of one of the instalments of the purchase price fell on the same day was a mere coincidence."

In Emigrant Co. v. County of Adams, 100 U. S. 61, 25 L. Ed. 563, the Emigrant Company purchased certain lands from the county and

See

agreed, as a part of the consideration, to drain the lands and bring in settlers. In an action to rescind the contract for breach of this and other covenants, the court said: "Here the contract was largely carried into execution soon after its inception. The engagements of the appellants to introduce settlers and the like were to be performed in the future; and their performance was not a condition, but, as before stated, rested in covenant. In case of a breach, they would lay the foundation of an action, but nothing more." also Trimble v. Green, 3 Dana, 353; Big Run Coal Co. v. Employers' Indemnity Co., 163 Ky. 596, 174 S. W. 25; Hunt v. Tibbetts, 70 Me. 221; Cavanagh v. Tyson &c. Co., 227 Mass. 437, 116 N. E. 818; Turner v. Mellier, 59 Mo. 526; Indian Mountain &c. Co. v. Asheville Ice &c. Co., 134 N. Car. 574, 47 S. E. 116; McCurry v. Purgason, 170 N. Car. 463, 87 S. E. 244, Ann. Cas. 1918 A. 907; Coos Bay R. Co. v. Nosler, 30 Oreg. 547, 48 Pac. 361; Danville &c. Co. v. Pomroy, 15 Pa. 151, 159; Collins-Plass Thayer Co. v. Hewlett (S. Car.), 95 S. E. 510; Cromwell v. Morris, 34 Dom. L. R. 305.

48 In Clark v. West, 137 N. Y. App. Div. 23, 122 N. Y. S 380, action was brought on a contract by which the plaintiff agreed to write certain law books, and the defendant agreed to pay $2 a page on delivery, and $4 a page in addition as the income from the books might produce that amount. Owing to the defendant's breach of contract in taking out the copyright in his name instead of in the name of the author, the plaintiff refused to complete performance of the contract. He had, however, prepared and delivered one book and a portion of another. The court held him entitled to recover the additional $4 a page.

"If a covenant by one party goes to the whole consideration of a promise by the other party its performance is a condition precedent to the right to enforce the promise; but if it goes only to a part of the consideration, the promise of the other party may be enforced without performance of the covenant, the other party being left to his right to recover damages for non-performance of the covenant. Mill Dam Foundry v. Hovey, 21 Pick. 417, 439; Boyle v. Guysinger, 12 Ind. 273; Coe v. Bradley, 5 Fed. Cas. 1170, case No. 2941; Water Lot Co. v. Leonard, 30 Ga. 560, 573; Dey v. Dox, 9 Wend. 129, 24 Am. Dec. 137."

In New Jersey, etc., Trust Co. v. Parker, 85 N. J. Eq. 557, 96 Atl. 574, by an antenuptial agreement a prospective husband agreed to leave by will to his intended wife certain securities if she kept her promise to marry him. They were married but several years later she left him and obtained a divorce on grounds not recognized in New York where the contract was made. Later the husband died and bequeathed the securities to another. It was held that the wife could not claim them under the ante-nuptial agreement. Even if it be granted that the wife's promise included an implied obligation to continue a wife unless released by a law like that of New York, the part performance seems to have warranted a different conclusion from that reached by the court. See the criticism in 29 Harv. L. Rev. 881. In

Casavant v. Sherman, 213 Mass. 23, 26, 27, 99 N. E. 475, the court said, speaking of a contract of employment: "The stipulations of the parties to the contract were mutual and dependent, and if, after it had been partially executed, the defendant by discharging the plaintiff made further performance impossible, he is liable in damages, unless the discharge could be justified on the ground of the plaintiff's defaults. Hodgkins v. Moulton, 100 Mass. 309; Hapgood v. Shaw, 105 Mass. 276; Earnshaw v. Whittemore, 194 Mass. 187, 192, 80 N. E. 520. It is settled that, while inadvertent or unimportant departures would not defeat the right of recovery, the plaintiff became bound to a substantial performance in furtherance of the objects intended to be accomplished. Eastern Forge Co. v. Corbin, 182 Mass. 590, 592, 66 N. E. 419, National Machine & Tool Co. v. Standard Shoe Machinery Co., 181 Mass. 275, 63 N. E. 900. . . .

"The jury were to determine whether the various acts of omission had been proved, and, if proved, they were further to decide whether when viewed as a whole, even if any one of them might have been insufficient, the defects in performance reasonably warranted the inference that the plaintiff would not or could not properly exert himself in the promotion of the defendant's interests. Chapman v. Coffin, 14 Gray, 454; Cabot v. Winsor, 1 Allen, 546; Cunningham v. Washburn, 119 Mass. 224." See also University Club v. Dakin, 265 III. 257, 106 N. E. 790, L. R. A. 1915 C. 854; Dudley v. Wye, 230 Mass. 350, 119 N. E. 790; Rosenthal Paper Co. v. National &c. Paper Co., 226 N. Y. 313, 123 N. E. 766.