The courts are agreed that if a default in one item of a continuous contract of this nature is accompanied with an announcement of intention not to perform the contract upon the agreed terms, the other party may treat the contract as being at an end.98 It has been held, for example, that upon a contract for the sale of implement handles of different patterns, a rejection of one installment by the buyer, accompanied by a refusal to accept any further deliveries of handles of one of the patterns included in the contract, discharges the seller from further deliveries under the contract.97 And a failure to pay for one installment, accompanied by circumstances indicating the intention of the buyer to abandon the entire contract, entitles the seller to treat the contract as discharged.98
93 Mere failure to pay, not evincing a purpose to renounce, held not to justify the seller in treating the contract as abandoned. Monarch Cycle Mfg. Co. v. Wheel Co., 105 Fed. 324, 44 C. C. A. 523; West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791. But see Robson v. Bohn, 27 Minn. 333, 7 N. W. 357; Rugg v. Moore, 110 Pa. 236, 1 Atl. 320; Hull Coal & Coke Co. v. Coke Co., 51 C. C. A. 213, 113 Fed. 256. Cf. Beatty v. Lumber Co., 77 Minn. 272, 79 N. W. 1013. See "Sales," Dec. Dig. (Key-No.) § 163; Cent. Dig. §§ 3S6-388.
94 St. 55 & 57 Vict c. 71, § 31.
95 Acts Mass. 1908, c. 237, § 45 (2).
In 1912, the Uniform Sales Act had been adopted in the following states: Arizona, Connecticut, Maryland, Massachusetts, New Jersey, New York, Ohio, Rhode Island, and Wisconsin. 37 Am. Bar Ass'n Rep. 1124 (1912).
It is always permissible for the parties to agree that the entire performance of a consideration, in its nature divisible, shall be a condition precedent to the right to a fulfillment by the other party of his promise.99 This point is illustrated by a case in which the master of a ship gave a sailor a note promising to pay him 30 guineas, which was more than the ordinary wages, "provided he proceeds, continues, and does his duty as second mate in the said ship from hence to the port of Liverpool." The sailor died after having performed the agreement for about seven weeks, but about three weeks before the ship reached Liverpool. The court held that the sailor's representatives could not recover upon the express contract, for its terms were unfilled; nor could they recover upon a quantum meruit for such services as he had rendered, because the terms of the ex press contract excluded the arising of any such implied contract as would form the basis of a claim upon a quantum meruit. "It may fairly be considered," it was said, "that the parties themselves understood that, if the whole duty were performed, the mate was to receive the whole sum, and that he was not to receive anything unless he did continue on board during the whole voyage." 1
96 Withers v. Reynolds, 2 Barn. & Adol. 882; Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183; Stephenson v. Cady, 117 Mass. 6; ante, pp. 658, 501. And see Bloomer v. Bernstein, L. R, 9 C. P. 58S. See "Sales," Dec. Dig. (Key-No.) § 163; Cent. Dig. §§ S8GS8S.
97 Laswell v. National Handle Co., 147 Mo. App. 497, 126 S. W. 969. See "Sales," Dec. Dig. (Key-No.) § 163; Cent. Dig. §§ 386-388.
98 Quarton v. American Law Book Co., 143 Iowa, 517, 121 N. W. 1009, 32 L. R. A. (N. S.) 1. See "Contracts," Dec. Dig. (Key-No.) § 171; Cent. Dig. §§ 754-757; "Sales," Dec. Dig. (Key-No.) § 99; Cent. Dig. § 264.
99 Cutter v. Powell, 6 Term R. 320; 2 Smith, Lead. Cas. 1, and notes; Leonard v. Dyer, 26 Conn. 172, 68 Am. Dec. 382; Martin v. Shoenberger, 8 Watts & S. (Pa.) 367; Hartley v. Decker, 89 Pa. 470. See "Contracts," Deo, Dig. (Key-No.) § 171; Cent. Dig. §§ 754-757.
1 Cutter v. Powell. 6 Term R. 320. See "Contracts," Dec. Dig. (Key-No.) § 171; Cent. Dig. §§ 754-757.