§ 1149. Good faith of the party in default immaterial. The fact that the party in default acted in good faith, or did not believe that he was violating his contract, is imma that a seller who makes default in the quality of the first of successive lots of goods which he undertakes to deliver cannot compel accceptance of subsequent lots. Simpson v. Crippin, supra, was disapproved. And in Rugg v. Moore (1885), 110 Pa. St. 236, 1 Atl. R. 320, the court held that, where the goods are to be paid. for at each delivery, the refusal to pay for any delivery, without sufficient cause, authorizes the seller to rescind the contract. King Philip Mills v. Slater, supra; Haines v. Tucker, 50 N. H. 307; Stephenson v. Cady, 117 Mass. 6; Bradley v. King, 44 Ill. 339, and Dwinel v. Howard, 30 Me. 258, were relied on, and Scott v. Kittaning Coal Co., 89 Pa. St. 231, 33 Am. R. 753, which is often cited as opposed, was distinguished. McGrath v. Gegner, supra, is to the same effect. See also Bollman v. Burt, 61 Md. 415; Carney v. Newberry (1860), 24 Ill. 203: Kokomo Strawboard Co. v. Inman (1892), 134 N. Y. 92, 31 N. E. R. 248; Stokes v. Baars (1882), 18 Fla. 656; Robson v. Bohn, 27 Minn. 333, 344; Branch v. Palmer, 65 Ga. 210; Fletcher v. Cole, 23 Vt. 114, 119. On the other hand, New Jersey, in Blackburn v. Reilly (1885), 47 N. J. L. 290, 54 Am. R. 159, 1 Atl. R. 27 (reaffirmed in Trotter v. Heckscher, 40 N. J. Eq. 612, 4 Atl. R. 83; Otis v. Adams, 56 N. J. L. 38, 27 Atl. R. 1092; Gerli v. Poidebard Silk Mfg. Co., 57 N. J. L. 432, 31 Atl. R. 401, 51 Am. St. R. 611), follows the English rule of Mersey Steel & Iron Co. v. Naylor. So does Iowa. See Myer v. Wheeler (1884), 65 Iowa, 390, 21 N. W. R. 692 [where it is said that "the rule es tablished by the decided weight of authority both in England and in this country is that rescission of a divisible contract will not be allowed for a breach thereof, unless such breach goes to the whole of the consideration," citing Freeth v. Burr, supra; Mersey Steel & Iron Co. v. Naylor, supra; Simpson v. Crippin, supra; Newton v. Winchester, 16 Gray (Mass.), 208; Winchester v. Newton, 2 Allen (Mass.), 492; Sawyer v. Railway Co., 22 Wis. 403, 99 Am. Dec. 49; Burge v. Railroad Co., 32 Iowa, 101; Hayden v. Reynolds, 54 Iowa. 157]. This case resembles Mersey Steel & Iron Co. v. Naylor very closely in its essential features. It was a contract for the delivery of ten carloads of barley in successive shipments, the sale being made on sample. When the first carload was sent the sellers drew on the buyers for the price and the draft was accepted, but when the car arrived the buyers found the barley not equal to sample; they therefore declined to pay the draft in full until other cars were received. The sellers refused to send any more, and brought suit for the price of the first carload. The buyers offered to recoup their damages for the non-delivery of the other nine carloads, and it was held that they were entitled to do so, as their refusal to pay for the first car under the circumstances was not absolute and did not justify rescission. This case is followed by Hansen v. Consumers' Steam Heating Co. (1887), 73 Iowa, 77, 34 N. W. R. 495; Osgood v. Bauder, 75 Iowa, 550, 1 L. R. A. 655, 39 N. W. R. 887. So terial. "The right of a party to a continuing contract to refuse to make subsequent performance on his part, after the other contracting party has refused upon full notice and demand to perform a substantial part of the contract on his part, is not dependent on the good faith of the latter, or on his belief that he is not violating the contract, but rests solely upon the fact whether or not he has violated or failed to perform a substantial part of the contract that the agreement required him to perform." 1 § 1150. — Rule does not apply where contract clearly severable. Where, however, the contract consists of several entirely distinct and independent parts, each of which can be performed without reference to the others, a failure of one of the parties to perform one of the terms is held not to authorize the other to rescind the whole contract and refuse to accept performance of the other terms by the party so in default, when such further performance is subsequently tendered.2 § 1151. Alterations by consent in time or place of delivery.— Akin also to the subject discussed in preceding sections is that which arises where, at the request of one of the parties, and before the time for performance has expired, the time or place of delivery has been changed. Such changes may be so also apparently does Michigan. See the late case of West v. Bechtel (1900), Mich. 84 N. W. R. 69, where the cases are fully reviewed. In a much cited note to the case of Norrington v. Wright, 21 Am. L. Reg. (N. S.) 395, when it was decided in the circuit court, Mr. Landreth collates the authorities English and American up to that date, 1882, and concludes that the weight of authority is to the effect that there can be no rescission unless the breach goes to the whole consideration. He also adds that "it is conceived that principle and the authorities will hardly warrant the supreme court in sustaining the decision" of the lower court. But the supreme court did sustain the decision, and since Mr. Landreth's note was written several other decisions of the same sort have been made, as will be seen above. 1 Cresswell Ranch Co. v. Martindale (1894), 63 Fed. R. 84, 11 C. C. A. 33, 27 U. S. App. 277. 2 Morgan v. McKee (1874), 77 Pa. St. 228; Herzog v. Purdy (1897), 119 Cal. 99, 51 Pac. R. 27; Myer v. Wheeler (1884), 65 Iowa, 390, 21 N. W. R. 692 [cited in second note preceding]. great or made under such circumstances as to amount to an abandonment of the old contract and the making of a new one; in which case the new contract must be so made as to satisfy the requirements of the statute of frauds in all cases to which that statute is applicable.' Such alterations, however, do not usually result in the making of a new contract, but are rather to be construed as a forbearance or waiver, by the one party at the request of the other, of a strict performance of the contract according to its terms, but leaving the contract otherwise unimpaired and entitling either party at any time within the original period to insist upon its performance; while, on the other hand, a performance at the new time or place assented to is a performance of the original contract.2 1 See ante, § 806. 2 Thus in Bacon v. Cobb, 45 Ill. 47, where the defendants were sued for not delivering corn as they had agreed, it appeared that the plaintiffs, at the defendants' request, had several times extended the time and had changed the place of delivery. Still the corn was not delivered, and in the action to recover damages it was urged by the sellers that these changes amounted to a new contract and that the plaintiffs could not recover on the original one on which they had declared. But the court held that a recovery could be had, saying: "Numerous authorities might be cited to the point that, where a party agrees to accept the thing to be delivered at a time or place other than that stipulated, a performance of this by the other party is equivalent to a performance of the original undertaking. . . . It would be strange law, indeed, if the defendants were allowed to say that, inasmuch as you gave us further time in which to perform our contracts, and we did not comply, you have no right to an action against us on our original contract." Citing McCombs v. McKennan, 2 Watts & S. (Pa.) 216, 37 Am. Dec. 505; Cummings v. Arnold, 3 Metc. (Mass.) 486, 37 Am. Dec. 155; Robinson v. Batchelder, 4 N. H. 40; Richardson v. Cooper, 25 Me. 450. In McCombs v. McKennan, supra, plaintiff was bound by contract under seal to deliver goods at a certain place, but afterwards, at his request, the defendant consented to receive the residue of the goods at a different place. Plaintiff delivered at the latter place, but defendant refused to receive, and the action was for damages on the original contract. and defendant insisted that it should have been on the new one; but the court said: "We think the true principle is that this was not so much an alteration of the original contract as a waiver or dispensation on the part of the defendant of certain things to be done by the plaintiff, which were conditions precedent to be performed by him. If a party agrees to accept the thing to be delivered at another time or place than that stipulated, a performance of this § 1152.. It is indispensable, however, that the party seeking to enforce the contract upon a request for performance made after the expiration of the period originally fixed shall be the forbearing one, for otherwise he cannot show that he by the other party is equivalent to a performance of the original undertaking. It imposes no new duty on the defendant; he simply accepts as performance by the plaintiff that which would not otherwise have been so; and the defendant's liabilities on the original contract remain the same." In Cuff v. Penn, 1 Maule & Sel. 21, the seller at the buyer's request had consented to postpone the delivery of part of the goods, and it was held that this did not amount to a new contract but to a waiver of perform ance at the time stipulated in the old; and that the seller could insist on a delivery within a reasonable time thereafter. This case is relied upon and followed in Watkins v. Hodges, 6 H. & J. (Md.) 38. In Ogle v. Vane (1867), L. R. 2 Q. B. 275, there were contracts for the delivery of iron by a certain time. Blackburn, J., said: "In the present case there were three contracts in writing, which may be treated as substantially one, that the five hundred tons of iron should be delivered by the end of July. None of it was delivered at that time; and the plaintiff, as he alleges, at the request of the defendant, waited till February, when he lost all patience and went into the market, and brought this action; and the damages were assessed at the market price in February, which was much higher than at the end of July. The argument of the defendant's counsel was that, inasmuch as the contract was broken at the end of July, the damages were fixed at the time of the breach, and nothing could alter the amount of damages, except something which would constitute a new contract, and that this new contract, not being in writing, would be void under the statute of frauds. I do not think that is the proper view of the present case. There is no evidence to show that the defendant ever bound himself to wait for a later delivery, or that he ever made a fresh contract. . . . The plaintiff, instead of insisting on his strict rights, consented to treat the defendant leniently, and said, 'I'll wait, but I do not bind myself to wait.' Here there was no substitution of one contract for another. The inference which I think the jury might well draw as the result of the evidence is that the parties did no more than this: The plaintiff was willing to wait, at the request of the defendant, for the defendant's convenience, and he did wait a long time, till February; but if he had lost patience sooner, and refused to wait any longer, he would have had a right to bring his action at once for the breach in July. It is clearly a case of voluntary waiting, and not of alteration in the contract." In Hickman v. Haynes (1875), L. R. 10 C. P. 598, a contract was made by which the plaintiff agreed to sell and deliver, and the defendant to accept and pay for, one hundred tons of a certain kind of iron at a fixed price per ton, delivery to be made at the rate of twenty-five tons a month dur was ready and willing to perform at the time or place originally agreed upon; and he would be compelled to rely upon the consent of the other to a substituted performance, which consent would not be binding without consideration and the elements of a new contract.1 the whole two thousand tons, which the defendants refused. The court of exchequer chamber, reversing the judgment of the court of exchequer, held that the original contract had not been put an end to by the plaintiffs application to the defendants not to deliver full monthly quantities during certain months, and the defendants were therefore bound to deliver the whole two thousand tons under their contract. ing four stated months. Seventy-five manded the delivery of the residue of tons were delivered according to contract, but during the month in which the last instalment was to be made the defendants requested the plaint iff to defer delivery of the last twenty-five tons, and the plaintiff verbally assented. Later the plaintiff acquiesced in a further postpone ment, again at the defendant's request, but after waiting a reasonable time without result they brought suit. The defense was the statute of frauds. But the court held that there was no fresh agreement at all for the delivery of the twenty-five tons, which could be regarded as having been substituted for the original written contract. There was nothing more than a waiver by the defendants of a delivery by the plaintiff of the last instalment of iron at the time originally agreed upon, and no binding agreement to enlarge the time for delivery. In Tyers v. Rosedale Iron Co. (1875), L. R. 10 Exch. 195, there was a contract for the sale and delivery, in monthly instalments of one hundred and sixty-six and two-thirds tons, of two thousand tons of iron. At several times during the period of delivery the plaintiffs requested the defendants to forbear from delivery of more iron under the contract, and the defendants accordingly only made partial deliveries during those months. In December, the last month for delivery under the terms of the contract, the plaintiffs de 1 In Plevins v. Downing. 1 C. P. Div. 220, it appeared that on the 15th of June, 1874, the defendant bought of the plaintiffs one hundred tons of pigiron, to be delivered, "twenty-five tons at once, and seventy-five tons in July next." By the end of July seventy-five tons in all had been delivered. There was no evidence of any request by the defendant to the plaintiffs before the end of July to delay the delivery of the last twentyfive tons; but it was proved that in October the defendant verbally requested the plaintiffs' manager to deliver them, in consequence of which they were forwarded in the course of the same month to the defendant, but he declined to receive them. In an action against the defendant for refusing to accept the twenty-five tons, the defendant pleaded, among other pleas, that the plaintiffs were not ready and willing to deliver the iron according to the contract. The court held that, inasmuch as the vendors were not shown to have |