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 seller delivers the amount agreed upon for each instalment as it comes due, and the buyer accepts such articles, the fact that the goods delivered in certain instalments are not up to the standard fixed by the contract is said not to be such breach of the entire contract as excuses the buyer from taking and paying for the remaining instalments.1 The acceptance by the buyer of a defective instalment is said to waive his right to treat such breach as a discharge.2 The question, however, is one upon which there is said to be "a wilderness of authority,"3 and the cases are far from harmonious.
5 Du Pont V. United Zinc Co., 85 N. J. L. 416, 89 Atl 092
6 Ambler v Sinaiko, 168 Wis. 236, 170 N. W. 270
7 Dow Chemical Co v Detroit Chemical Works, - Mich. -, 175 N. W. 269.
1 England. Jonassohn v. Young, 4 B. & S. 296.
Alabama. Worthington v. Gwin, 119 Ala. 44, 43 L. R A. 382 [sub nomine, Worthington v. Givin, 24 So. 739].
Georgia. Miller v. Moore, 83 Ga. 684, 20 Am. St. Rep. 329, 6 L R. A. 374, 10 S. E. 360; Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279, 55 S. E. 50.
Michigan. Williams v. Robb, 104 Mich. 242, 62 N. W. 352.
New Jersey. Blackburn v. Reilly, 47 N. J. L. 290, 54 Am. Rep. 159, 1 Atl. 27.
Hew York. Cahen v. Piatt, 69 N.
V. 348, 25 Am. Rep. 203; Pope v. Porter, 102 N Y. 366, 7 N. E. 304.
Pennsylvania. Scott v. Kittanning Coal Co., 89 Pa St 231, 33 Am Rep 753
West Virginia Ellison v Flat Top Grocery Co, 69 W. Va 380, 38 L. R. A. (N.S) 539, 71 S E. 391.
Probably no distinction can be drawn between the different kinds of articles which form the subject-matter of the contract of sale; and this principle has been applied to a number of different kinds of articles.
Coal. Jonassohn v. Young, 4 B. & S. 296.
Iron ore. Worthington v. Gwin, 119 Ala 44, 43 L. R. A. 382 [sub nomine, Worthington v. Givin, 24 So. 739],
Corn. Miller v. Moore, 83 Ga 684, 20 Am. St. Rep. 329, 6 L. R. A. 374, 10 S. E 360.
Bark. Blackburn v. Reilly, 47 N. J. L. 290, 54 Am. Rep. 159, 1 Atl. 27.
If the buyer refuses to accept a defective instalment, he may treat the offer of an instalment which is substantially defective as a breach for which he may avoid the entire contract.4 If the defects in an instalment which the buyer has accepted are latent, and if the buyer gives notice thereof as soon as he discovers the defects, he may avoid the entire contract in some jurisdictions.5
It has been held that if the vendor does not deliver an instalment at the time agreed upon, and the goods are not up to the standard, such default amounts to a breach of the entire contract and the vendee is justified in refusing to accept and pay for subsequent instalments.6 If the custom of the trade or business requires the buyer to pay for each car separately, a deficiency in the quantity contained in one car does not authorize the buyer in treating the contract as to the remaining cars as discharged.7 If one of the instalments is defective as to quantity and the buyer accepts such instalment with knowledge of such defect, he can not treat the remaining covenants of the contract as discharged so as to justify him in refusing to accept later instalments which conform to the provisions of the contract.8
The fact that the buyer has accepted an instalment, the quality of which is defective, does not prevent him from rejecting subsequent instalments which do not conform to the requirements of the contract, although the quality of such instalments is as good as the quality of the instalment which the buyer had accepted.9
Glass. Cahen v. Piatt, 69 N. Y 34S, 25 Am. Rep. 203; Scott v Kittanning Coal Co, 89 Pa. St. 231, 33 Am. Rep. 753.
Hay. Ellison v. Flat Top Grocery Co, 69 W. Va. 380, 38 L. R. A. (N S ) 539, 71 S. E. 391.
2 Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279, 55 6. E. 50; Williams v. Robb, 104 Mich. 242, 62 N W. 352; Pope v. Porter, 102 N. Y. 366, 7 N. E. 304
3 Ellison v. Flat Top Grocery Co., 69 W. Va. 380, 38 L. R. A. (N.S.) 539, 71 S. E. 391.
4 Newton v. Bayless Fruit Co, 155 Ky 440, 159 S. TV. 968; Enterprise Mfg Co. v. Oppenheim, 114 Md. 368, 38 L R A. (NS.) 548. 79 Atl 1007; Fullam v Wright & Colton Co., 196 Mass. 474, 82 N. E 711
5 McDonald v. Kansas City Bolt & Nut Co., 149 Fed. 360, 8 L. R. A. (N. S) 1110.
6 Cloth. King Phillip Mills v. Slater. 12 R I. 82, 34 Am. Rep. 603.
7 Roach v. Lane, 226 Mass. 598, 116 N. E 470.
8Craig v. Lane, 212 Mass. 195, 98 N. E. 685.