be given only one way, and in such a case the court may properly decide the matter as if it were a question of law. The view here expressed is in general that of the American cases. These may be classified according to the nature of the breach committed. A breach of one instalment of an instalment contract which causes a refusal to go on with subsequent instalments may be of several sorts: (1) The seller may have failed to deliver the quantity of goods he was bound to deliver as an instalment. (2) The buyer may have refused to take or accept delivery of the quantity of goods he was bound to take as an instalment. (3) The buyer may have failed to pay an instalment of the price. (4) Part or all of the goods delivered by the seller may have been defective in quality. These breaches may have happened in regard to one instalment or in regard to more than one. Under any of these circumstances the innocent party should be allowed to refuse further performance if the breach is material. $867. American decisions. The American cases clearly support the doctrine of the preceding section at least as to the first three of the classes of cases just referred to. Failure to deliver one instalment is generally held to excuse the buyer from taking the rest.67 67 Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. Ed. 366. In this case the plaintiff agreed to sell and the defendants to buy 5,000 tons of rails, shipment to be at the rate of about 1,000 tons per month. Price to be paid on presentation of the bills. The plaintiff shipped 400 tons towards the end of the first month, 885 tons in the second month, 1,571 tons in the third, 850 tons in the fourth, 1,000 tons in the fifth, and 300 tons in the sixth. The defendants received and paid for the first month's shipment, but then learning the amounts of the later shipments, notified the plaintiff that they should decline to accept them. The trial court instructed the jury that on these facts the defendants had a right to rescind the contract. This instruction was sustained. In Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 7 S. Ct. 882, 30 L. Ed. 920, the contract involved was for all the pig iron made from 1,400 tons of ore, to be shipped in instalments. About seven-eighths was seasonably shipped, the remaining one-eighth was delayed two months. The buyer was held justified in refusing to take any iron after it appeared that the seller could not deliver all of it in substantially the time agreed upon. To similar effect are California &c. Agency v. Penoyar, 167 Cal. 274, 139 Pac. 671, 674; Bollman v. Burt, 61 Md. 415; Pope v. Porter, 102 N. Y. 366, 7 N. E. 304; Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 88 N. E. 24, 21 L. R. A. 864; King Phillip Mills v. A few cases, however, hold the contrary in the absence of an intention on the part of the seller to repudiate or abandon the contract altogether. In accordance with the prevailing American view, also, default in accepting one instalment is held to excuse the seller from delivering the remainder.69 Slater, 12 R. I. 82, 34 Am. Rep. 603. In the case last cited the court disapproved of Simpson v. Crippen, L. R. 8 Q. B. 14, and [at page 86], sharply criticized Pordage v. Cole, 1 Wms. Saund. 319 []. See also Hamilton v. Thrall, 7 Neb. 210. There the defendant agreed to rent to the plaintiff, hotel furniture for a year for $6,000 in twelve monthly payments. By the same contract it was agreed that certain perishable furnishings were to be bought outright, the buyer to pay for them on a fixed day. Rent was paid for eleven months and then the tenant refused to pay for the twelfth month, and brought action on the ground that the furniture had not cost as much as it was agreed that it had. The court held that the covenant to purchase the perishable goods by the defendant could not be enforced without the lease of the furniture and, vice versa, the enforcement of one stipulation depending on a compliance with the other. See Norris v. Harris, 15 Cal. 226 (a contract made at the same time for different articles at different prices held not an entire contract unless the taking of the whole was essential from the character of the property, or was made so by the agreement of the parties, and a failure to obtain part of the articles, unless such failure would materially effect the object of the contract and thus influence the sale, had such a failure been anticipated, did not justify a refusal to take the rest); Herzog v. Purdy, 119 Cal. 99, 51 Pac. 27 (the contract was for the sale of certain salt hides, skins, pelts, and tallow of animals previously slaughtered and thereafter during the current month to be slaughtered; to be delivered on or about the 1st of the following month. It was held that a refusal to take the salt hides did not justify a refusal to deliver the other articles, as a separate price was fixed by the contract for each). These cases should be regarded as perhaps improperly holding the contracts before the court several separate contracts than as laying down an erroneous proposition as to divisible contracts. Cf. California &c. Agency v. Penoyar, 167 Cal. 274, 139 Pac. 671, 674. 69 In Cresswell Co. v. Martindale, 63 Fed. 84, 11 C. C. A. 33, the contract was for the sale of about 5,000 steers, each to weigh over 900 pounds, to be delivered in instalments. After nearly half the cattle had been delivered, the seller offered an instalment of 980 steers. Of these the buyers refused to accept or pay for 282 on the ground that they did not weigh 900 pounds. Before the time for another delivery arrived, the seller notified the buyers that since they had violated the contract by rejecting the 282 head, that no more cattle would be delivered. The buyers sued for damages for the failure of the seller to deliver the remainder. The jury found that the rejected cattle fulfilled the requirements of the contract. The court said: "The right of a party to a continuing contract to refuse to make subsequent performance on his part, after the other contracting party had refused, upon full notice and demand, to perform a substantial part of the contract on his part, is not dependent on the good faith of the latter, nor on his So failure to pay for one instalment by the buyer excuses the seller from delivering the rest; and this is generally so held without regard to the reason for the buyer's failure." A belief that he is not violating the contract." In Loudenback Fertilizer Co. v. Tennessee Phosphate Co., 121 Fed. 298, 58 C. C. A. 220, 61 L. R. A. 402, the plaintiff agreed to buy from the defendant the plaintiff's consumption of phosphate rock for five years, and the defendant agreed to sell the same. After about seven months' performance the buyer for nearly a year and a half wrongfully failed to order any phosphate rock. Upon receiving an order after that time the seller refused to fill it or deliver any more rock, and was held not liable for so refusing. In Smith v. Keith Coal Co., 36 Mo. App. 567, under a contract for the sale of 120 tons of hay to be delivered before May 1st, fifty-two tons were delivered and the defendant then rejected several loads of merchantable hay. The court held that on notice of the rejection of merchantable hay the seller was justified in refusing further to perform and disapproved the case of Simpson v. Crippen, L. R. 8 Q. B. 14. In Providence Coal Co. v. Coxe, 19 R. I. 380, 35 Atl. 210, under a contract to sell 10,000 tons of coal, "cash thirty days." "Barge loaded immediately, balance in equal monthly proportions before February 1, 1893," the buyer failed to take shipment for July and four following months. This was held to warrant the seller in rescinding the contract. See also Alpena Cement Co. v. Backus, 156 Fed. 944, 84 C. C. A. 444; Alwart Bros. Coal Co. v. Royal Colliery Co., 234 Fed. 20, 148 C. C. A. 36; Los Angeles Gas & Elec. Co. v. Amalgamated Oil Co., 156 Cal. 776, 106 Pac. 55; California &c. Agency v. Penoyar, 167 Cal. 274, 139 Pac. 671; Robson v. Hale, 139 Ga. 753, 78 S. E. 177; Koch v. Wimbrow, 111 Md. 21, 73 Atl. 896. But see Worthington v. Gwin, 119 Ala. 44, 24 So. 379, 43 L. R. A. 382. The plaintiff in this case agreed to mine all the ore within a given territory, the defendant paying monthly a specified sum for each ton delivered. The plaintiff mined several thousand tons and a small part of this was mined and delivered in a way not authorized by the contract. This was held not to give the defendant a right to forbid the plaintiff to continue mining. The court cites with approval the doctrine of the English and New Jersey cases. 70 Youghiogheny & O. Coal Co. v. Verstine, 176 Fed. 972; Savannah River Sales Co. v. McFarland, 242 Fed. 587; Ackerman v. Santa Rosa-Vallejo Tanning Co., 257 Fed. 369, (C. C. A. 1919); Farmers', etc., Trading Co. v. Ward, 170 Ala. 491, 54 So. 513; Stokes v. Baars, 18 Fla. 656; Branch v. Palmer, 65 Ga. 210; Savannah Ice Co. v. American Refrigerator Co., 110 Ga. 142, 35 S. E. 280; Armuchee Pants Mfg. Co. v. Juilliard, 14 Ga. App. 141, 80 S. E. 525; Chicago Washed Coal Co. v. Whitsett, 278 Ill. 623, 116 N. E. 115; Patten v. Iroquois Furnace Co., 124 Ill. App. 1; Ohio Valley Buggy Co. v. Anderson Forging Co., 168 Ind. 593, 81 N. E. 574; Cullen-Friestedt Co. v. Turley, 50 Ind. App. 468, 97 N. E. 946; Capper v. Manufacturers' Paper Co., 86 Kans. 355, 121 Pac. 519; Central Lumber Co. v. Arkansas, etc., Lumber Co., 86 Kan. 131, 119 Pac. 321; Godchaux v. Chicago Lumber, etc., Co., 131 La. 112, 50 So. 33; Curtis v. Gibney, 59 Md. 131; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. St. Rep. 415; Baltimore v. Schaub, 96 Md. 534, 54 Atl. 106; Sullivan v. Boswell, 122 Md. 539, 89 Atl. 940; Eastern Forge Co. v. Corbin, 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 182 Mass. 590, 66 N. E. 419; Robson v. Bohn, 27 Minn. 333, 7 N. W. 357; Palmer v. Breen, 34 Minn. 39, 24 N. W. 322; Berthold v. St. Louis Construction Co., 165 Mo. 280, 65 S. W. 784; Gardner v. Clark, 21 N. Y. 399; Kokomo Co. v. Inman, 134 N. Y. 92, 31 N. E. 248; American Broom Co. v. Addickes, 19 N. Y. Misc. 36, 42 N. Y. S. 871; Edward Thompson Co. v. Vacheron, 125 N. Y. S. 939, 69 N. Y. Misc. 83; Reybold v. Voorhees, 30 Pa. St. 116; Rugg v. Moore, 110 Pa. St. 236, 1 Atl. 320; Easton v. Jones, 193 Pa. St. 147, 44 Atl. 264; Alpha Portland Cement Co. v. Oliver, 125 Tenn. 135, 140 S. W. 595, 38 L. R. A. (N. S.) 416. 71 Monarch Cycle Co. V. Royer Wheel Co., 105 Fed. 324, 44 C. C. A. 523; Johnson Forge Co. v. Leonard, 3 Pennew. 342, 51 Atl. 305, 57 L. R. A. 225, 94 Am. St. Rep. 86; Myer v. Wheeler, 65 Iowa, 390, 21 N. W. 692; Tuttle-Chapman Coal Co. v. Coaldale Fuel Co., 136 Ia. 382, 113 N. W. 827; Quarton v. American Law Book Co., 143 Ia. 517, 121 N. W. 1009, 32 L. R. A. (N. S.) 1; Collins v. Swan-Day Lumber Co., 158 Ky. 231, 164 S. W 813; Winchester v. Newton, 2 Allen, 492 (cf. Eastern Forge Co. v. Corbin, 182 Mass. 590, 66 N. E. 419); West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791; Beatty v. Howe Lumber Co., 77 Minn. 272, 79 N. W. 1013; Blackburn v. Reilly, 47 N. J. L. 290, 1 Atl. 27, 54 Am. Rep. 159; Otis v. Adams, 56 N. J. L. 38, 27 Atl. 1092; Empire Rubber Mfg. Co. v. Morris, 77 N. J. L. 498, 72 Atl. 1009; Trotter v. Heckscher, 40 N. J. Eq. 612, 4 Atl. 83. (The passage of the Uniform Sales Act has now changed the New Jersey law. Materiality of the breach is now the test. E. I. Dupont de Nemours Powder Co. v. United Zinc &c. Co., 85 N. J. L. 416, 89 Atl. 992.) Tucker v. Billing, 3 Utah, 82, 5 Pac. 554; Campbell & Cameron Co. v. Weisse, 121 Wis. 491, 99 N. W. 340. 72 Withers v. Reynolds, 2 B. & Ad. 43; Munroe v. Trenton, etc., Co., 206 Fed. 456, 124 C. C. A. 362; Sturdevant v. Mittelstadt, 166 N. Y. App. Div. 943, 151 N. Y. S. 298. But see Hjorth v. Albert Lea Mach. Co., (Minn. 1919) 172 N. W. 488. 73 See supra, § 859. 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. 78 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., |