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.
If the vendor does not deliver an installment at the time agreed upon, this is not a breach of the entire contract which excuses the vendee from taking and paying for subsequent installments delivered on time, according to view entertained by some courts.1 Other courts, however, hold that a failure to deliver an installment when due, if the time of the delivery is of the essence of the contract, is such a breach as to discharge the vendee from his obligation to accept and pay for the remaining installments.2 Thus under a contract to deliver iron3 in specified installments, failure to deliver one installment at the time specified, if time is of the essence of the contract, is such a breach as to discharge the vendee. The same result has been reached under a contract to log and manufacture a certain amount of lumber and to load it on cars one season and to complete the work during the following season where the stipulated amount was not gotten out during the first season.4 On this question the English cases, in spite of heroic efforts to reconcile them, are in hopeless conflict; some holding that such a breach is a discharge,5 others that it is not.6 When one shipment was loaded before the time fixed by the contract, it was held to be such a breach as to discharge the vendee.7
6 Bean v. Bunker, 68 Vt. 72; 33 Atl. 1068.
7 Mersey Co. v. Xaylor, 9 App. Cas. 434; affirming 9 Q. B. D. 648; Campbell v. McLeod, 24 N. S. 66; Cox v. McLaughlin, 54 Cal. 605; Keeler v. Clifford, 165 111. 544; 46 N. E. 248; Palm v. Ry., 18 111. 217; Osgood v. Bauder, 75 la. 550; 1 L. R. A. 655; 36 N. W. 887; Winchester v. Xewton, 2 All. (Mass.) 492; West v. Bechtel, 125 Mich. 144; 51 L. R. A. 791; 84 N. W. 69; Beatty v. Lumber Co., 77 Minn. 272; 79 N. W. 1013; Wharton v. Winch, 140 N. Y. 287; 35 N. E. 589; Bethel v. Improvement Co., 93 Va. 354; 57 Am. St. Rep. 808;
33 L. R. A. 602; 25 S. E. 304.
8 Withers v. Reynolds, 2 Barn & Ad. 882; W. K. Henderson Lumber Co. v. Stilwell, 130 Mich. 124; 89 N. W. 718; State v. Davis, 53 X. J. L. 144; 20 Atl. 1080.
9 Roberts v. Havelock, 3 B?rn. & Ad. 404.
1 Gerli v. Mfg. Co., 57 N. J. L. 432; 51 Am. St. Rep. 612; 30 L. R. A. 61; 31 Atl. 401; Blackburn v. Reilly, 47 N. J. L. 290; 54 Am. Rep. 159; 1 Atl. 27.
2 Cleveland Rolling Mill v. Rhodes, 121 U. S. 255; Pope v. Porter, 102 N. Y. 366; 7 X. E. 304; Conway v. Fitzgerald, 70 Vt. 103; 39 Atl. 634.