Whether the contract is one for the sale of goods to be delivered in instalments, or whether it is a contract for work and labor, or for the construction of some improvement, the party for whose benefit such performance has been made is usually contracting for an entire thing, although he accepts performance in instalments. This is perhaps the clearest of all in building contracts. A contract to build a house would evidently not be performed by constructing a cellar, a framework and a roof; and the omission of the completion of the intervening floors would be such a breach that the party for whom it was built would evidently be justified in treating the contract as discharged.1 The question is almost as clear in contracts for the construction of other improvements. While a contract for building a road, or a railway, or a sewer, can be performed in instalments, the omission of a number of sections from the entire job would undoubtedly be so far short of substantial performance that the party for whom such work was done could treat the contract as discharged.2 In many cases of contracts of sale, whether the sale is of material for the performance of a construction contract, or whether it is a sale of a stock of goods, the purchaser is frequently in as bad a situation if part of the goods are delivered and the rest are delayed or withheld, as is the owner of a house in which the intervening stories are not constructed, or the owner of a railroad from which a number of sections have been omitted. In most of these cases failure to perform one instalment, or a material delay in performance, when time is of the essence of the contract, defeats the purpose for which the contract was made.
15 Kelly Construction Co. v. Hacken-aack Brick Co.. 91 N. J. L. 585, 2 A L. R. 685, 103 Atl. 417; Central Georgia Brick Co. v. Carolina Portland Cement Co., 136 Ga. 603, 71 S. E. 1048; Shinn v. Bodme, 60 Pa. St. 182, 100 Am Dec 560.
I6 Kelly Construction Co. v. Hacken-aack Brick Co, 91 N. J. L. 585, 2 A.
L. R. 685, 103 Atl. 417; Central Geor-gia Brick Co. v. Carolina Portland Cement Co., 136 Ga. 693, 71 S. E. 1048; Shinn v. Bodine, 60 Pa. St. 182, 100 Am. Dec. 560.
See Sec. 3000 et seq.
1 See Sec. 3022.
2 See Sec. 3022.
In like manner, a party who has stipulated for payment in instalments does so either because he is unwilling to extend credit in excess of a limited amount, or because he has not sufficient capital to perform the contract unless payment is made in instalments. In either case, failure to make such payment, or a material delay therein, compels such party to assume a much greater obligation than he had contracted for, unless he is allowed to treat such breach as a discharge. While the question of materiality of the breach as to that instalment is frequently a difficult one to determine, the general principle that the courts will not force upon the parties contractual obligations into which they have not entered voluntarily, should keep the courts from insisting that either party to such a contract should be compelled to continue performance after a material breach as to one instalment has prevented him from accomplishing the purpose for which he entered into the contract. If the Uniform Sales Act3 is construed as providing that a material breach as to one instalment may be treated by the adversary party as a discharge.of the remaining instalments, it has helped to put this branch of the law on a sound basis. If the somewhat ambiguous provision is construed by the court as making it a matter of fact in each case, whether the entire contract should be discharged because of a breach as to one instalment, it should be amended so as to make it clear that a material breach as to any instalment will operate as a discharge of the entire contract.
If the contract is one which is to be performed in instalments by either party or by both parties, it would seem as though it made no practical difference which party was in default. Some courts have, however, treated this problem, especially in contracts for the sale of goods, as if it depended in part on the question whether the seller broke the contract by failing to make delivery, or whether the purchaser broke the contract by failing to make payment. For this reason these questions are considered separately.4 While there is some ground for claiming that failure to deliver or to pay the first instalment should have different consequences from failure to deliver or to pay for some subsequent instalments after the earlier instalments have been delivered or paid for, as the case may be, on the theory that such performance has reduced the remaining covenants for delivery or payment in instalments to independent covenants,5 it would seem that this principle should not apply to instalment contracts, since it can not properly be said that the delivery of any instalment or the payment therefor is the vital term of the contract, the performance of which reduces the remaining covenants to the rank of independent covenants.6 Because of the fact that some emphasis has been laid on the question whether the instalment as to which the parties are in default is the first instalment or some later one, this distinction will also be noticed.7
3 See Sec. 3018.
4 See Sec. 8010 et seq.
It would seem on principle that no distinction ought to be drawn with reference to the subject-matter of the contract. Contracts for the sale of goods, for the sale of realty, for the construction of buildings or other improvements, and for work and labor, would all seem to be subject to the same general principle. The courts, however, have as a matter of fact treated these different classes of contract in different ways; and even the jurisdictions which have been quite ready to hold that a breach as to one instalment of a contract for the sale of goods should not operate as a discharge of the remaining covenants,8 have reached the opposite conclusion in other classes of contracts.9