This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Contracts are often made which require delivery, or payment, or both, in installments. Whether such contracts are entire, and whether a breach as to one installment is a discharge as to the remaining installments is a question upon which there is hopeless divergence of judicial authority, since different courts act on two distinct theories, which sometimes produce the same results, but more often different ones. One theory is that such contracts are entire, and that a breach by one party as to one installment is the breach of " a condition precedent upon the failure or non-performance of which the party aggrieved may repudiate the whole contract."1 The other theory is that such breach does not of itself amount to a discharge, but that it is only when the party breaking the contract shows that he repudiates his contractual obligation, that it is to be treated as a breach by renunciation,2 and hence a discharge.3 In applying this last theory some courts have treated such contracts as entire on one side and apportionable on the other.4
2 Tuttle v. Burgett, 53 O. S. 498; 53 Am. St. Rep. 649; 30 L. R. A. 214; 42 N. E. 427.
3 Teats v. Flanders, 118 Mo. 660; 24 S. W. 126.
4Vaneleave v. Clark, 118 Ind. 61; 3 L. R. A. 519; 20 N. E. 527.
5 Lathrop v. Mayer, 86 Mo. App. 355.
6 Parker v. Russell, 133 Mass. 74.
1 Norrington v. Wright, 115 U. S. 188, 203; quoted in Cleveland Rolling Mill v. Rhodes, 121 U. S. 254. 261.
2 See Sec. 1442.
3 See Sec. 1442.