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.
In other cases default in making payment is treated as a discharge on the theory that the party in default has made performance impossible on the part of the adversary party, by withholding payments.1 If this is the real reason for treating nonpayment as a discharge, nonpayment should not be treated as a discharge if the financial condition of the adversary party is such that performance is possible in spite of such default in payment2 If the logical result of this principle is to make the effect of breach upon the contract dependent upon the financial strength of the adversary party, the reason itself is clearly wrong.
10 See Sec. 3011.
1 Londenback Fertilizer Go. v. Tennessee Phosphate Co., 121 Fed. 298, 61 L. R. A. 402; Herzog v. Purdy, 119 Cal. 99, 51 Pac. 27; Providence Goal Co. v. Coxe, 19 R. I. 380, 35 Atl. 210.
The seller can not recover the conbract price. Barrie v. Qumby, 206 Mass. 259, 92 N. E. 451.
See Sec. 2882 et seq.
2 Collins-Plass Thayer Co. v. Hew-ett, 109 S. Car. 245, 95 8. E. 510.
3 Collins-Plass Thayer Co. v. Hew-ett, 109 S. Car. 245, 95 S. E. 510.