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 A sells certain timber to B at a certain price, and as part of such contract A agrees to log such timber at a certain price, and B pays the consideration agreed upon, A can not treat B's delay in permitting A to proceed to log such timber as a discharge of his covenant so to do.1 The fact that a contractor has not paid the subcontractors in full does not discharge the property owner from his duty to pay the contractor if the subcontractors have omitted to secure liens upon the property for the amounts due to them.2 If A gives an option to B for a consideration to be paid by B in the future, and by such contract A agrees to make certain improvements on the land, A's failure to make such improvements does not discharge B from his liability to pay for such option, at least if such improvements would not have increased the value of the property to B and if B has not suffered any damage by reason of A's failure to make such improvements.3 If A has agreed to pack goods belonging to A and to send them to B by a certain time, and if B agrees to furnish labels therefor, B's failure to send labels does not discharge A, at least if A had labels on hand from the previous year and if A refused to perform at all, on B's demand, when there was sufficient time to put on such labels.4 An ante-nuptial contract by which the wife is to receive a certain sum in lieu of her dower, is not discharged by the subsequent separation of the parties.5 If A sells a business to B and agrees not to compete with B during a certain period of time, A's breach of his covenant not to compete has been held to be a partial failure of consideration which does not discharge B from his liability upon his note given in consideration of the transfer of such business and A's covenant.6 If A enters into a contract with B by which B is to have the use of certain realty and is to have the right to use a spur track subject to the regulations of the railway, the fact that the railway changes its regulations in such a way that B could not make use of the track does not amount to failure of consideration.7 If A leases to B under a contract by which A is to repair the outside of the buildings and B is to pay a certain rent and to repair the inside of the buildings, the failure of A to reconstruct one of the smaller buildings which was destroyed does not discharge B from his duty to pay rent.8 Under a contract to erect a mill and maintain and operate it for five years and not to transfer it in that time, breach of the latter stipulation gives rise to an action for damages but does not entitle the adversary party to recover money paid as a consideration for the contract.9 Under a similar contract buildings were erected by a manufacturing company under a contract to remove their business, but the removal was never made. This was held to be a breach going to the essence of the contract, and recovery could be had of money paid thereunder.10 Under a contract for operating a brickyard, breach of a provision by which one party agrees to buy all his supplies of the other does not go to the essence of the contract and does not prevent him from recovering for what he has done.11 The rule that partial failure of consideration does not discharge a contract has been carried to such an extent that failure to furnish water for more than an acre and a half has been held not to be a defense to an action upon a note given in payment for water rights for one hundred and sixty acres.12
4 Bennett v. Glaspell, 15 N. D. 239, 107 N. W. 45.
5 Coleman v. Valentin, 30 S. D. 323, 164 N. W. 67.
1 Mueller v. Cook, 126 Wis. 504, 105 N. W. 1054.
2 Bloomington Hotel Co. v. Garth -wait, 227 111. 613, 81 N. E. 714.
3 Fargo v. Wade, 72 Or. 477, L. R. A. 1915A, 271, 142 Pac. 830.
4 Ady v. Jenkins, 133 Md. 36, 104 Atl. 178.
5 Schnepfe v. »Schnepfe, 124 Md. 330, 02 Atl. 891.
6 Bradford v. Montgomery Furniture Co., 115 Tenn. 610, 0 L. R. A. (N.S.) 979, 92 S. W. 1104.
For the opposite view, see Sec. 2986.