(e) Chippendale v. Thurston, 4 C. & P. 98.

(f) Stevens v. Webb, 7 C. ft P. 60.

(g) Thus, where A agreed to deliver to B by the first of May, from 700 to 1,000 barrels of meal, for which B agreed to pay on delivery at the rate of six dollars per barrel, and A delivered 700 barrels, and also before the day tendered to B 300 barrels more, to make up the 1,000 barrels, which B refused; it was held, that B was bound to receive and pay for the whole 1,000 barrels; the delivery of any quantity between 700 and 1,000 barrels, being at the option of A only, and for his benefit. Disborough v. Neilson, 3 Johns. Cas. 81.

(h) Thus, in an entire contract of sale or manufacture of a large quantity of an article or articles, at an agreed price for each, the current of authorities holds, that a delivery and acceptance of part, gives a right to recover for that part, deducting whatever damages the other party sustained by the non-fulfilment of the contract. Bowker v. Hoyt, 18 Pick. 555, a sale of 1,000 bushels of corn at 85 cents per bushel. The plaintiff delivered only 410 bushels, and refused to deliver the remainder; the vendee kept what he had received, and was held bound to pay for it, deducting his damages. Oxendale v. Wetherell, 9 B. & C. 386, was a sale of 250 bushels of wheat at 85 cents per bushel. The vendor delivered only 130 bushels, when corn having advanced, he refused to deliver the remainder. The jury found the contract to be entire, but as the vendee had retained the corn delivered, until after the expiration of the time for the completion of the contract, the whole Court of King's Bench held him liable for the same. Champion v. Short, 1 Camp. 53, is to the same effect. There the defendant, who resided at Salisbury, ordered from the plaintiff, a wholesale grocer in London, "half a chest of French plums, two hogsheads of raw sugar, and 100 lumps of white sugar, to be all sent down without delay." The plums and raw sugar arrived nearly as soon as the course of conveyance would permit; but the white sugar not coming to hand, the defendant countermanded it, and gave notice to the plaintiff, that as he had wished to have the two sorts of sugar together, or not at all, he would not accept of the raw. The plums the defendant used, and this action having been brought to recover the price of the plums and the raw sugar, he tendered the price of the plums; and at the trial the question was, whether he was liable to pay for the sugar. And, per Lord Ellenborough: " Where several articles are ordered at the same time, it does not follow, although there be a separate price fixed for each, that they do not form one gross contract. I may wish to have articles A, B, C, and D, all of different sorts and of different values;

1 As where one promises to return certain property or its money equivalent, and the former perishes, Drake v. White, 117 Mass. 10; or where a physician agrees to form a copartnership with another physician, or if the latter withdraws entirely from that "field of practice, to give him a pecuniary compensation, and then refuses to practise in copartnership with him, Frothingham v. Seymour, 121 Mass. 409.

2 An agreement by a preacher to allow one of the subscribers to his salary to pay the amount in preaching services will discharge the society to that extent So held in Glover v. Dowagic Universalist Parish, 48 Mich. 595.

together by expressions giving entirely to the contract It is not enough that the duty to be done is in itself severable, if the contract contemplates it only as a whole. (i) If money is to be paid when work is done, and an action be but without having every one of them as I direct, the rest may be useless to me. I therefore bargain for them jointly. Here, had the defendant given notice that he would accept neither the plums nor the raw sugar, as without the white sugar they did not form a proper assortment of goods for his shop, he might not have been liable in the present action; but he has completely rebutted the presumption of a joint contract, including all the articles ordered, by accepting the plums, and tendering payment for them. Therefore, if the raw sugar was of the quality agreed on, and was delivered in reasonable time, he is liable to the plaintiff for the price of it." And see Barker v. Sutton, 1 Camp. 55, n.: Bragg v. Cole, 6 J. B. Moore, 114; Shaw v. Badger, 12 S. & R. 275, recognize the same rule. In Booth v. Tyson, 15 Vt. 515, the contract was to mould for the defendant two hundred stove patterns; only a part was ever made, which the defendant used and disposed of, as they were made. The plaintiff gave up the contract without completing it; but he was allowed to recover on a quantum meruit, deducting the damages to the other party. In Mayor v. Pyne, 3 Bing. 235, also, it was held, that a contract to publish a work in numbers, at so much a number, meant that each number should be paid for as delivered. Shipton v. Cason, 5 B. & C. 378, holds also, that an acceptance of part under an entire contract, gives a right of action for such part, although, in accordance with the suggestions in that case, it may be questioned whether the plaintiff can sustain an action for part, until after the expiration of the time for the delivery of the whole; for perhaps the vendee may conclude to return what he has received unless the whole is delivered, which cannot be known until the time has expired. See Waddington v. Oliver, 5 B. & P. 61. The New York courts adopt a different doctrine, and hold, that part performance, although accepted, furnishes no ground of recovery pro tanto, and repudiate the doctrine of Oxendale v. Wetherell, supra; Champlin v. Rowley, 13 Wend. 285, 18 id. 187; Mead v. Degolyer, 16 Wend. 632; Paige v. Ott, 5 Denio, 406; McKnight v. Dunlop, 4 Barb. 36; and see ante, .p. •528, n. (i).

(i) The most frequent cases where the entirety of a contract is sustained as a good defence in law to an action for part performance, are, perhaps, contracts of labor and service for a fixed time. Here the current of authorities agrees that part performance gives no right to part compensation, unless the fulfilment of the contract is prevented by the act of the obligee. Cutter v. Powell, 6 T. R. 320, is well known as the leading case on this subject. There a sailor had taken a note from the master of a vessel to pay him 30 guineas," provided he proceeded, continued, and did his duty as second mate from Jamaica to Liverpool." The sailor died on the voyage, and his administrator was not allowed to recover anything for the service actually performed. But as the sailor was by the contract to receive about four times as much, provided he completed the voyage, as was generally paid for the same service without any special contract, this fact might have had much influence upon the court in determining this contract to be entire and not apportionable. But in this country, sickness or death of the laborer has been frequently held a sufficient excuse for non-performance of the whole contract, and the laborer, or his administrator, may recover for the service actually rendered. Fenton v. Clark, 11 Vt. 557 ; Dickey v. Linscott, 20 Me. 453; Fuller v. Brown, 11 Met. 440. The same rule has been applied where the non-performance was caused by the act of law. Jones v. Judd, 4 Comst. 412. See ante, p. *38, n. (j). Although in the same courts the general rule is fully recognized and constantly acted upon, that part performance of such a contract gives no right to part payment, if the non-performance is voluntary on the part of the plaintiff, and not caused by the defendant or by an act of God. See St. Albans St. Co. v. Wilkins, 8 Vt. 54; Hair v. Bell, 6 Vt. 35; Philbrook v. Belknap, 6 Vt. 383; Brown v. Kimball, 12 Vt. 617; Ripley v. Chipman, 13 Vt. 268; Stark v. Parker, 2 Pick. 267; Olmstead v. Beale, 19 Pick. 528. And see ante, p. * 36, n. (g) and ante, p. * 523, n. (i). So if rent is to be paid quarterly, and during a quarter the lessee delivers up and the lessor accepts possession of the premises, without anything said about rent pro rata, none is payable. Grimman v. Legge, 8 B. & C. 324; and see Badeley v. Vigurs, 4 Ellis & B. 71, 26 Eng. L. & Eq. 144.