Gross, J., criticizes the tendency of the old cases to construe the covenants to be independent as 'contrary to the real sense of the parties and the true justice of the case.' See also the remarks of Lawrence, J."

1 Phillips, etc., Const. Co. v. Seymour, 91 U. S. 646; Dwinell v. Howard, 30 Me. 258; King Philip Mills v. Slater, 12 R. I. 82; Reybold v. Voor-hees, 30 Penn. St. 116; Hartje v. Collins, 46 Penn. St. 268; Robson v. Bohn, 27 Minn. 333. In Van Buren v. Digges, 11 How. U. S. 461, it was held that when payment is to be made by instalments, at fixed periods, the contractor, on payment not being made, may quit the work and sue for what has been done; and this though the contract provides that the work shall be prosecuted until completion.

In the 11th American edition of first instalment is made with the evident intention of repudiating the contract, or indicates incapacity to perform it Chitty on Contracts, II. 923, we have the following note: "There may he rescission for the unperformed portions. And if I mistake not the effect of Grant v. Johnson, 1 Seld. 252; Dox p. Dey, 3 Wend. 361; Bradley v. King, 44 111. 339; they establish the sensible rule that where the subject is divided in quantities and times for delivery, and price, as each portion is performed or partially performed, and the partial performance is accepted, the doctrine of Boone v. Ayre applies as to so much as has been done, leaving the right of rescission as a remedy for the future performances, if they are capable of being severed, because of the defaults as to those parts as to which Boone v. Ayre applies. Smith v. Lewis, 40 Ind. 98, is distinct on the same point, unless it be that the permission to make deliveries at different times makes the difference." An instructive article on this topic by Mr. McMurtrie will be found in 15th Am. Law Rev. (Oct. 1881) 580; see, also, Solicitors' Journal, London, July 13, 1881, as given in 15th Am. Law Rev. 687.

In King Philip Mills v. Slater, 12 R. I. 82, which came before the supreme court of Rhode Island in 1877, the plaintiff, the King Philip Mills, on January 28, 1873, being about to go into operation, agreed with S. to sell to him the production of 400 looms up to July 1. The goods were to be made of specified weight, width, and quality, and to be delivered in lots of 1000 pieces; and payment was to be made thirty days after the delivery of each lot. The mill was expected to be in full operation by April 1, but deliveries were to be made earlier if possible, and the maximum production was to be reached as soon as practicable, and to be maintained. About April 17, two lots, 1000 pieces each, were delivered, and were deficient in width and weight. The evidence showed that the plaintiff to fulfil the contract must procure new machinery. Upon learning this S. rescinded the contract. The plaintiff brought assumpsit against S. for goods subsequently and before July 1 manufactured, tendered, and refused. - It was ruled that the contract was for successive deliveries of goods as manufactured, and that the plaintiff having failed in the first deliveries could not compel S. to take goods subsequently manufactured and offered.

" It seems strange," said Potter, J., "that of the almost infinite variety and number of cases of contract coming before the courts, there should have been so few where the agreement was for successive deliveries at more or less definite periods; and that when they have occurred, the decisions should have been so conflicting. This conflict has arisen, partly, we think, from applying to this class of contracts, distinguished from all others by this marked peculiarity, principles of decision which properly belonged only to other classes of contracts.

"Incases of contracts for successive deliveries the doctrine of condition precedent becomes more difficult of application. So, also, when in such cases the articles already delivered have been used, it becomes impossible for the party rescinding to return them and put the other party in statu quo.

" In the progress of improvement in mechanics and the arts old systems of labor and of trade are changing, each branch of business becomes more and and to pay for the goods to be delivered in future, the seller will be relieved from further delivery.1 The insolvency of the purchaser, coupled with failure to pay for the first instalment, will relieve from the duty to deliver the remaining instalments.2 But a mere temporary default in payment of the first instalment will not, when explained and corrected, relieve the vendor from his obligations as to other instalments, for which the purchaser is willing and ready to pay;3 nor does an imperfection in performance which may be compensated for by a set-off, or by an action for damages.4 - What has been said applies a fortiori to sales of perishable articles, deliverable day after day, and to be paid for at the end of each week. Upon a single failure to pay, the vendor has a right to rescind.5