1 The doctrine of Lord Kenyon, in Chambers v. Griffiths, 1 Esp. 151 (ubi sup.), was said by Lord Brougham, in Casamajor v. Strode (Cooper t. Brougham, 510; 8 Cond. Ch. 516), not to be sound doctrine, and that Lord Eldon, in the note to Roffey v. Shallcross (4 Madd. 227), carried the rule "too far the other way. The rule, which he laid down, founded the entirety of the contract upon the question, whether the circumstances showed that the purchaser would not have bought, except in the expectation of receiving the whole. See also 2 Kent, Comm. Lect. xxxix. p. 470; Barclay v. Tracy, 5 Watts & Serg. 45; James v. Shore, 1 Stark. 426; Miner v. Bradley, 22 Pick. 458. But see Mills v. Hunt, 17 Wend. 338; 20 Wend. 431; Judson v. Wass, 11 Johns. 525. See post, § 605, 607.
2 Price v. Lea, 1 B. & C. 156.
3 Clark v. Baker, 5 Met. 452; Franklin v. Miller, 4 Ad. & El. 605; Chanter v. Leese, 4 M. & W. 295; 5 ib. 698; post, § 1337.
4 Champion v. Short, 1 Camp. 53; Roberts v. Beatty, 2 Penn. 63; Coolidge v. Brigham, 1 Met. 550; Taylor v. Hilary, 1 C. M. &. R. 741; Long v. Preston, 2 Moo. & P. 262; Wheeler v. Board, 12 Johns. 363; Patmore v. Colburn, 1 C. M. & R. 65; Carter v. Carter, 14 Pick. 424; Payne v. Whale, 7 East, 274; Danforth v. Dewey, 3 N. H. 79; Bradford v. Manly, 13 Mass. 139; Raymond v. Bearnard, 12 Johns. 274; Davis v. Marston, 5 Mass. 199; Hurst v. Orbell, 8 Ad. & El. 107; 3 Nev. & P. 237; Conner v. Henderson, 15 Mass. 319.
§ 85. So, if by the terras of the contract there be any specific time within which goods are to be delivered, and the seller only deliver a portion within the time, the vendee, if he continue to retain such portion and make no offer to return them, will be considered as waiving his right to treat the contract as entire, and will be responsible for the portion actually received. Thus, where there was an absolute purchase by the defendant of 250 bushels of wheat, at eight shillings a bushel, and the plaintiff only delivered 130 bushels, before the time for completing the contract expired, which were accepted and retained by the buyer, it was held that he was liable for the price of the 130 bushels, on the ground that, as he retained a portion, after failure of the seller to comply with his agreement, he must be understood to have abandoned his rights to treat the contract as an entirety.1 Especially would this be the case where the vendee retains a portion of the goods after the vendor has refused to deliver the remainder.2
§ 36. But these exceptional cases are peculiar in their circumstances, and depend upon an implied agreement by both parties to treat the contract as divisible and not entire; since in the cases put, the vendee would on no other supposition be entitled to retain a part of the goods in case of failure by the vendor to comply with his agreement; and the vendor on his side must be understood as only offering a part. But one party alone would have no authority to change the agreement at his option so as to render it divisible, and, therefore, if the vendor be willing to deliver the whole, the vendee could not object that, as part only was according to the agreement, or warranty, he would keep and pay for a part only; but he must refuse the whole and rescind the contract entirely, or accept the whole and bring an action for damages, on the warranty.1
1 Oxendale v. Wetherell, 9 B. & C. 386. In this case Parke, J., said, "Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers part, he cannot, before the expiration of that time, bring an action to recover the price of that part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered after the seller has failed in performing his contract, the latter may recover the value of the goods which he has so delivered." So, also, in Read v. Rann, 10 B. & C. 438, Mr. Justice Parke said, " In some cases, a special contract, not executed, may give rise to a claim in the nature of a quantum meruit, ex. gr., where a special contract has been made for goods, and goods sent not according to the contract are retained by the party, there a claim for the value on a quantum valebant may be supported, but then, from the circumstances, a new contract may be implied." In New York the opposite doctrine obtains. See Champlin v. Rowley, 13 Wend. 258; 18 ib. 187; Pullman v. Corning, 5 Selden, 95; Paige v. Ott, 5 Denio, 406; McKnight v. Dunlop, 4 Barb. 36; Mead v. Degol-yer, 16 Wend. 632 So, also, in Ohio, Witherow v. Witherow, 16 Ohio, 238. But Mr Justice Read dissented.
2 Bowker v. Hoyt, 18 Pick. 555. See Lucas v. Godwin, 3 Bing. N. C. 737. As to the effect of a tacit extension of time for the performance of a contract, see Coburn v. Hartford, 38 Conn. 290 (1871).
§ 37. Again, if one party is prevented from fulfilling his contract in its entirety by the fault of the other party, an agreement would be implied on the part of the person in fault to treat the contract as divisible, so that the other party would be enabled to recover a quantum meruit for what he had performed.2
§ 38. Where a contract, though entire in its form, relates to several distinct and independent acts to be done at different times, it is divisible in its nature, and an action of assumpsit will lie on each default. Thus, if the agreement be to pay £20 by daily instalments of five pounds, upon failure to pay the first instalment, an action of assumpsit may be brought therefor.3
1 Clark v. Baker, 5 Met. 452; 11 Met. 186. See also Franklin v. Miller, 4 Ad. & El. 605, 606; Walker v. Dixon, 2 Stark. 281; Withers v. Reynolds, 2 B. & Ad. 882; Story on Sales, ch. xiv.
2 Planche v. Colburn, 8 Bing. 14; Moulton v. Trask, 9 Met. 577; Goodman v. Pocock, 15 Q. B. 576; Derby v. Johnson, 21 Vt. 18; Clark v. Marsiglia, 1 Denio, 317; Hall v. Rupley, 10 Barr, 231; Wilhelm v. Caul, 2 Watts & Serg. 26; Champlin v. Rowley, 18 Wend. 187; Appleby v. Myers, Law R. 2 C. P. 651 (1867); Sherman v. Champlain Transp. Co., 31 Vt. 163 (1858); Myers v. Baptist Society, 38 Vt. 614 (1866).