The Uniform Sales Act contains a provision as to the effect of default in the performance of an instalment contract on the part of either the buyer or the seller. "Where there is a contract to sell goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or to pay for one or more instalments, it depends in each case on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken."1 If the question as to the materiality of the breach of the contract means the materiality of the breach of the particular instalment, and if it assumes that the breach as to one instalment, if material as to that instalment, will operate as a discharge of the entire contract at the election of the party who is not in default, no objection can be made to the result, although the wording may not be the clearest imaginable. If the "materiality of the breach" refers to the contract as a whole, and if, after a material breach as to one instalment is shown, the question of fact remains as to the effect of such breach upon the remaining covenants of the contract, the statute avoids laying down a rule as to even the prima facie effect of the breach as to one instalment upon the remaining covenants of the contract.

1 United States. Norrington v. Wright, 115 U. 8. 188, 29 L. ed. 366; Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 30 L. ed. 020; Londenback Fertilizer Co. v. Tennessee Phosphate Co., 121 Fed. 298, 61 L. R. A. 402; Consumers' Bread Co. v. Stafford County Flour Mills Co., 239 Fed. 693.

Maryland. Bollman v. Burt, 61 Md. 415; Hazel Hill Canning Co. v. Roberts, 129 Md. 306, 99 Atl. 424.

Massachusetts. Barrio v. Quinby, 206 Mass. 259, 92 N. E. 451.

Hew York. Pope v. Porter, 102 N. Y. 366. 7 N. E. 304.

Pennsylvania. White v. Wolf, 185 Pa. St. 369, 39 Atl. 1011.

Vermont Conway v. Fitzgerald, 70 Vt. 103, 39 Atl. 634.

2 United States. Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366.

Maryland. Bollman v. Burt, 61 Md. 415; Hazel Hill Canning Co. v. Roberts, 129 Md. 306, 99 Atl. 424.

Massachusetts. Barrie v. Quinby, 206 Mass. 259, 92 N. E. 451,

Pennsylvania. White v. Wolf, 185 Pa. St. 369, 39 Atl 1011.

New York. Pope v. Porter, 102 N. Y. 366. 7 N. E. 304.

3 Pratt v. Metzger, 78 Ark. 177, 95 S. W. 451; Blackburn v. Reilly, 47 N. J. L. 290, 54 Am. Rep. 159, 1 Atl. 27; Gerli v. Poidebard Silk Mfg. Co., 57 N. J. L. 432, 51 Am. St. Rep 612, 30 L. R. A. 61. 31 Atl. 401; Krebs Hop Co. v. Livesley, 59 Or. 574, 114 Pac. 944, 118 Pac. 165; Costigan v. Hawkins, 22 Wis. 74, 94 Am. Dec. 583; Sawyer v. Chicago & Northwestern Ry., 22 Wis. 403, 99 Am. Dec. 49.

4 Norrington V. Wright, 115 U. S. 188, 29 L. ed. 366; Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 30 L. ed. 920.

5 Conway v. Fitzgerald, 70 Vt. 103, 39 Atl 634.

The courts have not been harmonious in their views as to the effect of this section. In New Jersey this section of the statute is held to alter the original rule, which was that breach as to one instalment on the part of the seller was not a discharge of the remaining covenants of the contract;2 and the question of the materiality of the breach, apparently with reference to the entire contract, is said to be a question for the jury unless it is so clear that the court may decide it.3 In this case a deficiency of over four hundred tons in a contract which provided for the delivery of two thousand tons was held to be so clearly a material breach that the court could decide such question without submitting it to the jury.4 In this case, however, the buyer had apparently accepted all of the article which the seller could deliver in spite of the seller's defaults; and the action was brought to recover damages for failure to deliver the difference between the quantity contracted for and the quantity actually delivered.5 Under this statute, it has been said that a mere neglect to pay an instalment for a time might not be sufficient, but that if such neglect is coupled with a refusal to make any further payments until all of the property has been delivered, such breach is material if the contract requires payment for each instalment within a certain time after its delivery.6 Under this section full effect must be given to a provision in the contract which reserves to the seller the right to treat the contract as discharged if the buyer fails to make prompt payment for the different instalments in accordance with the terms of the contract.7

1 Sec. 45 of the Uniform Sales Act (2).

2 Blackburn v. Reilly, 47 N. J. L. 290, 54 Am. Rep. 159, 1 Atl. 27 (obiter, as the case was one of a delivery of instalments of defective quality).

3Du Pont v. United Zinc Co., 85 N. J. L. 416, 89 Atl. 992.

4 Du Pont v. United Zinc Co., 35 N. J. L. 416, 89 Atl. 992.