A building or construction contract is ordinarily, from its nature, an entire contract, even though provision is made for paying therefor in instalments as the work progresses.1 If the contract gives the builder the right to stop work at a certain stage and take a certain sum therefor, it is nevertheless an entire contract if for a complete building.2 A contract for moving and repairing an old house and building an addition thereto, to be paid in instalments as the work progresses, is entire. No recovery of instalments can be had if before they come due the building is destroyed by fire.3 Such a contract is, however, so far severable that an action can be brought for each instalment as it comes due.4

1 England. Roberts v. Havelock, 3 Barn. & Ad 404.

Arkansas. Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886.

California. Porter v. Arrowhead Reservoir Co, 100 Cal. 500, 35 Pac. 146; San Francisco Bridge Co. v. Dumbarton Land & Improvement Co., 119 Cal 272, 51 Pac 335

Illinois. Central Military Tract Ry. v. Spurck, 24 111. 587; Dobbins v. fligging, 78 111. 440.

Minnesota. Newton v. Highland Improvement Co, 62 Minn. 430, C4 N. W. 1146.

Washington. Dyer v. Irrigation District, 25 Wash. 80, 64 Pac. 1009.

This principle has been applied to a number of different classes of contracts:

Constructing canal. South Fork Canal Co. v. Gordon, 73 U. S. (6 Wall.) 561, 18 L. ed. 894.

Setting hedge. Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886.

Building levee. San Francisco Bridge Co. v. Dumbarton Land & Improvement Co., 119 Cal. 272, 51 Pac. 335.

Building road. Porter v. Arrowhead Reservoir Co., 100 Cal. 500, 35 Pac. 146.

Clearing land. Newton v. Highland Improvement Co., 62 Minn. 436, 64 N. W. 1146.

Digging ditch. Dyer v. Irrigation District, 25 Wash. 80, 64 Pac. 1009.

2 Roberts v. Havelock, 3 Barn. & Ad. 404.

3 Roberts v. Havelock, 3 Barn. & Ad. 404.

1 United States. South Fork Canal Co. v Gordon, 73 U S. (6 Wall ) 561, 18 L. ed. 894; Knotts v. Clark Construction Co., 249 Fed 181; McGowan v. United States, 35 Ct. CI 606.

California. American-Hawarian Engineering & Construction Co. v. Butler, 165 Cal 497, 133 Pac 280.

Georgia. Chamberlin v. Booth, 135 Ga. 719, 35 L. JR. A. (N.S.) 1223, 70 S. E. 569.

Michigan. Finnegan v. Worden-Al-len Co., 201 Mich. 445, 167 N. W. 930.

Minnesota. Peet v. East Grand Forks, 101 Minn. 518, 112 N. W. 1003.

Missouri Bean v. Miller, 69 Mo. 384.

West Virginia. McConnell v. Hewes, 50 W. Va. 33, 40 S. E. 436; Lunsford v. Wren, 64 W. Va. 458, 63 S. E. 308.

For purposes of a mechanic's lien. Grace v. Building Association, 166 III. 637, 46 N. E. 1102 [reversing, 63 III. App. 339].

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If the party for whom such work is done is guilty of a material breach as to the time, manner or amount of payment, the party who was to do such work may treat such default as a discharge of the contract;5 he may refuse further performance,6 and he may recover compensation for work done under the contract,7 or he may recover damages for the breach thereof.8 If the contract provides for payment to a subcontractor in money, it is held that he may treat the contract as discharged if the principal contractor insists on crediting, as against such instalment, material which the subcontractor has used and which has been furnished by the property owner and paid for by the contractor.9

If the party for whom the work is done not only omits to pay an instalment, but refuses to act with the contractor in determining the amount due, the contractor may treat such conduct as a discharge.10

2 Hunnicutt & Belling rath Co. v. Van Hoose, 111 Ga. 518, 36 S. E. 669.

3 Clark v. Collier, 100 Cal. 236, 34 Pac. 677.

4 Crawford v. McKinney, 165 Pa. St. 609, 30 Atl. 1047.

5 United States. Guerini Stone Co. v. P. J. Carlin Construction Co., 248 U. S. 334, - L. ed. - [reversing P. J. Carlin Construction Co. v. Guerini Stone Co., 241 Fed. 545]; South Fork Canal Co. v. Gordon, 73 U. S. (6 Wall.) 561, 18 L. ed. 894; Knotts v. Clark Construction Co., 249 Fed. 181.

California. American-Hawaiian Engineering & Construction Co. v. Butler, 165 Cal. 497, 133 Pac. 280.

Michigan, Finnegan v. Worden-Al-len Co., 201 Mich. 445, 167 N. W. 930.

Minnesota. Peet v. East Grand Forks, 101 Minn. 518, 112 N. W. 1003.

Missouri. Bean v. Miller, 69 Mo. 384.

Nebraska. Howard County v. Pesha, - Neb. - 172 N. W. 55.

Washington. Bishop v. T. Ryan Construction Co., 106 Wash. 254, 180 Pac. 126.

West Virginia. Lunsford v. Wren, 64 W. Va. 458, 63 S. E. 308.

A lessor may treat the failure of the lessee to pay rent as a discharge of a contract by the lessor to furnish power. Bean v. Fitzpatrick, 67 N. H. 225, 38 Atl. 722.

6 Peet v. East Grand Forks, 101 Minn. 518, 112 N. W. 1003.

7 Lunsford v. Wren, 64 W. Va. 458, 63 S. E. 308.

8 Knotts v. Clark Construction Co., 249 Fed. 181.

9 Finnegan v. Worden-Allen Co., 201 Mich. 445, 167 N. W. 930.

10 Bishop v. T. Ryan Construction Co., 106 Wash. 254, 180 Pac. 126.

The contractor, however, can treat the failure of the property owner to pay an instalment as a discharge only if the contractor has performed the covenants of the contract on his part, substantially at least, up to the time of such default on the part of the property owner.11 If the contractor has not performed in accordance with the contract,12 and if he has failed to furnish bonds required by the contract,13 the refusal of the property owner to make further payments is not a breach which will justify the contractor in treating the contract as discharged.

If the contractor wishes to treat such breach as discharge, he must treat it as a discharge of the entire contract,14 or at least of the covenants of the contract, the performance of which are affected by the default of the property owner.15 If the contractor continues performance in spite of the default of the property owner, he can not treat such default in making payment as an excuse for delay on his part in performing the contract, unless he is able to show that such delay was caused by the failure of the property owner to make such payments in accordance with the terms of the contract.16

A provision in a construction contract to the effect that partial payments are to be made on estimates at certain intervals of time, or at certain stages of performance, is held to make the contract so far severable that the contractor may recover for work actually done, although he is subsequently in default,17 although the property owner may recoup the damages due to such default.18