Where no time has been fixed, or where performance at an appointed time has been waived, either party may limit a reasonable period within which it must be performed. giving notice thereof to the other party ; 16 Beay. 59, 239; L. R. 10 Eq. 281.
A contract for the delivery of a number of personal chattels of the same kind is sev erable in its nature, and if a part is ac cepted and appropriated to the use of the vendee, he must pay the stipttlated price for such part, less damages sustained by reason of the failure to make complete de livery ; Saunders v. Short, 86 Fed. 225, 30 C. C. A. 462.
Where the contract is silent as to the mode of performance, it should be accord ing to the usage of the place where it is made; 11 Ex. 645; but it must be substan tial and bona fide, conforming to the true intent and meaning, and not merely the let ter, of the agreement; 4 id. 128. Conditions precedent must be performed; 3 Addisou, Contr. 8th ed. [1189]. A contract to deliver personal property means only delivery e at some convenient place subject to the disposal of the buyer upon notification to him ; Kauff man v. Raeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247 ; and if the shipments are to be made to places designated by the buyer who does not give the necessary orders, the seller is not required to tender the goods at the buyer's place of business; Seligman v. Beecher, 36 ea. Super. Ct. 475. Where payment and delivery are to he at a specified time and place concurrently and one party is absent, the other party need only show that he was ready and willing to perform ; Catlin v. Jones, 52 Or. 337, 97 Pac. 546.
One who prevents another from perform ing his part of a contract is estopped from insisting that any rights were lost by such failure to perform, but must give a reason able time therefor after the obstruction is removed; Blodgett v. Zinc Co., 120 Fed. 893, 58 C. C. A: 79; Elkhart Car-Works Co. v. Ellis, 113 Ind. 215, 15 N. E. 249.
Where the buyer accepts a late shipment of one order for goods he does not waive his right to object to late deliveries of the other orders under the same contract; Braitsch v. Kiel Co., 114 N. Y. Supp. 872.
A party who is himself in default cannot insist on performance by the other party as a condition precedent to his performance; Harris Lumber Co. v. Lumber Co., 88 Ark. 491, 115 S. W. 168 ; contra, Tronson v. Colby University, 9 N. D. 559, 84 N. W. 474, where a note was given in consideration of the promisee's promise to discharge certain claims against the promisor and the prom isee failed to pay the claims, such failure was no defense to an action on the note.
Difficulty or impossibility of performance, short of impossibility, will not excuse non performance; Cameron-Hawn Realty Co. v. Albany, 207 N. Y. 377, 101 N. E. 162 ; but this does not apply to executory contracts for personal services, for the sale of specific chattels, or for the use of particular build ings; id.
See CADNDITION.
In Kauffman v. Raeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247, Sanborn, J., distinguished the case from Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; Bowes v. Shand, 2 App. Cas. 467, and Telfner v. Russ, 162 U. S. 170, 16 Sup. Ct. 695, 40 L. Ed. 930, in that the questions in those cases related to the performance of executory contracts of sale under which the defendant had received no benefit for partial performance by the plaintiff for which they had not paid, and the broken covenants were covenants which went to the whole consid eration of the contract, while in the case at bar the defendants had received the benefits of a substantial performance by the plaintiff without paying the agreed consid eration therefor, and the covenant was a sttbordinate covenant, the breach of which could be readily compensated in damages. He stated the following rules : Where one party to a contract has re ceived and retains the benefit of a substan tial partial performance thereof by another, he cannot rescind, but must perform his part, and his remedy for the breach of com plete performance by the other party is limited to compensation in damages.
Where a party to a contract has conferred upon the other party the benefits of a sub stantial partial performance thereof, but has not completely performed the contract, he may sue the other party for specific perform ance or for damages for the latter's failure to perform, upon the ground of his own par tial performance but not his complete per formance; and the defendant may recoup his damages for the plaintiff's failure of the complete performance, or may recover them in an independent action.
The breach of a dependent covenant, which goes the whole consideration, gives the injured party the right to rescind, or to treat the contract as broken and recover damages for a total breach.
The breach of an independent covenant, which does not go to the whole considera tion, is not a breach of the entire contract and does not warrant its rescission by the injured party. The latter is still bound to perform his part of the contract and his only remedy is compensation in damages.
An open cessation of performance, even if justified, excuses the other party ; The Eliza Lines, 199 U. S. 119, 26 Sup. Ct. 8, 50 L. Ed. 115, 4 Ann. Cas. 406.
A seller cannot repudiate the entire con tract if the buyer has refused to pay for one instalment on delivery as stipulated ; West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791; contra, Webster v. Moore, 108 Md. 572, 71 Atl. 466.
See ELECTION OF RIGHTS OR REMEDIES ; FROM; BREACH; INDEPENDENT PROMISES; SPECIFIC PERFORMANCE.