delivered the opinion-of the court.
Was this contract entire or severable? We first examine the agreement and authorities cited by defendant in error. Parsons on the Law of Contract (3d Ed., Sec. 4, pp. 29, 30,) says: “ If the part .to be performed by one party consists of several distinct and separate items, ahd the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by-law, such a contract will generally be held to be severable.” This is illustrated by the case of Johnson vs. Johnson, 3 Bos. & Pull., 162, where plaintiff had purchased from the same party two parcels of real estate, the one for 700 pounds, the other for 300 pounds. After payment and possession delivered, plaintiff was evicted from one parcel in consequence of a defect in the title, and brought his action to recover back the price of the latter. The court held that he could recover,_ for although both pieces of ground were bargained for at the same time the bargain must be considered as consisting of two distinct contracts, and in the case of Robinson vs. Green, 3 Metcalf, 159, where an auctioneer engaged with another to sell a large number of lots of wood, part of thefn in another county where the auctioneer could not legally sell, and wherefore it ivas claimed that the contract for services as auctioneer was entire, and being in part *660illegal, the action could not be sustained, the court held that the sale of each lot was a distinct contract, and the plaintiff’s claim for compensation arises upon each sale, aiid is complete on each sale. “ If there were an express promise to pay him a fixed sum for the entire sale it would have presented a different question.”
Says Parsons : “ If the consideration to be paid is single and entire the contract must be held to ]ie entire, although the subject of the contract may consist of several distinct and wholly independent items. The mere fact that the subject of the contract is sold by weight or measure, and the value is ascertained by the price affixed to each yard or pound or bushel of the quantity contracted for, will not be sufficient to render the contract severable.” Parson Con., 31, 32, and cases noted.
In Boone vs. Eyre, 1 H. Bl., 273, note, there were mutual covenants going only to parts of the consideration, and because the defendant had his remedy on the covenant he could not plead a breach of a condition precedent. That was a case of a sale of a plantation and slaves with covenant of title for a money consideration, and as a further consideration a covenant to pay an annuity. The case of Franklin vs. Miller, 4 Ad. & E., 599, decided that the plea was bad, (in a case of mutual covenants) as showing only a partial failure of performance by plaintiff, which did not authorize defendant to rescind the contract, but he must rely on the covenants.
The court in Perkins vs. Hart, 11 Wheat., 237, say: “That’if the contract was fully performed in relation to any one subject covered by it, * * the plaintiff might well maintain an action of "indebitatus' assumpsit’ for 'his' stipulated cómpensátion "in' cash, on that transaction,'and was not bound to Wait until all the lands 'to' which his ágfency extended Were disposed of. Where the agreemént embraces *661a number of distinct.subjects, which admit of being separately executed and closed, it must be taken distributivelyj each subject being considered as forming the matter of a separate agreement after it is so closed.”
Sickles vs. Pattison, 14 Wend., 257, merely affirms that where there is an entire contract for performance, the party failing to perform is not entitled to maintain an action for part, except where there is a stipulation for payment of a part performance. . .
It is correctly claimed by counsel for defendant in error that if the contract is severable, a failure of plaintiff to perform one of several stipulations which is independent of the other would not authorize the defendant to refuse to proceed with his part; and that a' refusal of the plaintiff to perform must, in order to entitle the defendant to rescind, be absolute and unqualified. It was so held in Smoot’s case, 15 Wall., 36, 48; Benj. on Sales, §568; Smith’s Lead. Cas., 28, 37; 8 Bing., 124; 7 Ad.,& Ellis, 557; 4 Best & Smith, 295, and. other authorities cited by. counsel, and Í do not understand this position to be questioned by counsel for plaintift in error. But it is said on the other side that this is not a several or severable contract but is entire. Plaintiff in error insists that there is but one contract here, and that is an agreement on his part to deliver a certain number of pieces of timber, water .permitting, by a certain day, all deliverable on the first or the last day named, or by such instalments as may be convenient to himself, and to be paid therefor at the rate of so much per cubic foot, on handing to plaintiff specifications of measurement of timber ready for delivery. In Clark vs. Baker, 5 Met., 452, there was a purchase of a cargo of yellow and white corn on board seller’s schooner, quantity not known, one price for the yellow and another price for the whité, it was held that the contract was entire, and it could not be *662allowed that there was a separate contract tor each bushel or for each kind of corn.
Gardner vs. Clark, 21 N. Y., 399, was an action by an-assignee of Gardner against Clark for damages from the nonperformance of a contract to sell and deliver a thousand bushels of barley at 44 cents per bushel, at a store house, to be paid for as fast as delivered. Defendant pleaded that a: portion of the barley had been delivered, and that he had always been- willing and ready to deliver the residue according to the terms of the contract, but that Gardner was nbt ready Or willing to receive or pay for the same according to the contract. It was held that though defendant had ñot demanded payment for each load that had been delivered, yet he had a right at any time upon-being ready to deliver a load, and offering so to do, to demand payment for such load, and that upon non-compliance’ by plaintiff the contract was broken on his part. It is evident that the court thought' that an entire contract and that the rescission was concurrent.
The case of Withers vs. Reynolds, 2 B. & Ad., 882, 22, (Eng. Com. Law) was this: “ Reynolds agreed to supply Withers with straw, to be delivered at W.’s premises, at the rate of three loads a fortnight, until 24th June; 1830, at 33 shillings per load, and W. agreed to pay R. the agreed price for each load so. delivered. The straw was delivered from October, 1829, till January, 1830, at which time plaintiff being in arrears for several loads defendant demanded the amount, and plaintiff then tendered defendant the, price of all the straw delivered except the last load; saying, ‘he should always keep one load in hand.’ Defendant objected, and was obliged to take the money offered, and then- told plaintiff he would send no more straw unless it was paid for on delivery, and' no more was sent. Plaintiff then sued for damages for non-delivery of *663straw. The court decided that plaintiff having expressly refused to pay for the load as delivered, according to-the contract, the defendant is not liable for ceasing to perform on his part.” -
Coleridge, J., in Franklin vs. Miller, 4 Ad. & Ellis, 599, says: “ The rule is that in rescinding, as in making a.contract, both parties must concur. In Withers vs. Reynolds each load of straw was to be paid for on delivery. . When the plaintiff said he would not pay for the load on.delivery that was a total failure, and the plaintiff was no longer bound to deliver. In such a case it may be taken that the party refusing has abandoned the contract.”
There is in Smith’s Leading Cases, pp. 36, 37, &c., (5 Am. Ed.) an examination of many cases collated upon this point, from which it is established that- “ where one contractor has absolutely refused to. perform,'or rendered himself incapable of performing his part of the contract, the other contractor may, if he please, rescind, such act or such refusal being equivalent to a consent to the rescission.”
The Supreme Court of Illinois in Bradley vs. King, 44 Ill., 339, had a case quatnor pedibus with the present respecting the question of entirety of the contract and rescission. Bradley & Co., by sealed articles with King & Brothers, agreed to deliver to the latter in Chicago one million feet of lumber. King & Bros, agreed’ to pay $2,000 down, $1,000 March 15, $1,000 on the first and $1,000 on the 15th April, and the balance as fast as the- lumber should be received,: the whole to be delivered by September 1. On that day there had been delivered only about 218,000 feet. Between that and September 29 nearly 600,000 feet more were delivered. An action- of covenant -was brought by purchasers against vendors -for failure to deliver lumber as required by the contract. The' court below sustained a demurrer to the third plea, which averred that for -the *664last cargo delivered to and accepted by plaintiffs, they refused,to make payment. The court say that “although the acceptance by the plaintiffs of a part of the lumber after the 1st September was a release of.damages for non-delivery only as to the portion accepted, there being no express waiver, yet when on the 29th September the defendants delivered, and the plaintiffs accepted a cargo, it was Clearyaccepted ,on the terms of the original contract as to payment. , Its acceptance placed the purchasers under the same-obligations as to payment that they would have been under had the-cargo been delivered prior to the 1st of September, and that, obligation was, by the terms of the contract, payment on, delivery. If the purchasers refused to perform this obligation on their part the vendors were excused from further delivery. The payment for the lumber at the time of its receipt was,a condition precedent, so far as concerned the right,of the plaintiff to demand further delivery.” , ■
. The, plea was held good.
..All the cases hold that a refusal to pay for the part delivery, as.required by the terms of the contract, is an abandonment on the part of the party refusing .to pay, and is such an absolute unqualified refusal to perform that the seller may also treat the contract as rescinded, and is under no obligation to perform further on his part.
..Was there then, a refusal to pay on the part of Baars, at the time of the part delivery of the lumber, as alleged in the pleas of the defendant Stokes in this caso ?
The -second and third pleas aver that Baars refused to pay for quantities of timber .delivered under the agreement, wherefore, defendant made no farther delivery. These are good ¡pleas according to the uniform language .of' the. decisions..; The,,fourth plea avers that in anticipation of delivery, ¡the,, defendant drew on Baars for $20Q, which draft was.accepted by him, and that on making:delivery of.tdm*665ber to Baars, with specifications, the latter paid him therefor, excepted the $200 acceptance which Baars said had been paid, and relying on this statement defendant made delivery, but that in fact the $200 acceptance had not been paid by Baars, and has not yet been paid, and defendant therefore declined to make further delivery.
It does not appear that the $200 draft was delivered or received as a payment, but on the false representation that it had been paid; and defendant supposing it had been paid; he treated it as a payment and delivered the timber. If that $200 had not been paid Baars had not complied with the condition of delivery, but had deceived defehdant, and by the deception had obtained the delivery without payment. But plaintiff’s counsel insists that “ the plea should have alleged, a destruction of the acceptance,.or should have offered to return it, and that .he cannot leave the acceptance outstanding, with the right of suit upon it.”
But if it is outstanding, it is because Baars has not paid, and he being now insolvent, “ the right of suit,” it is more than probable, will be exercised against defendant rather than against Baars. When Baars pays it; it will be simply paying what he owes, so that he will lose nothing. It was his failure and refusal to -pay, according to his contract, that gave defendant the right to join him in repudiating it.
Other pleas of1 the defendant are that Baars was not ready to receive and pay for the timber,’according'to the contract; that he had before breach assigned to Knowles &Brent; that Baars was insolvent; and that K. &. B. have not paid the $200 remaining unpaid on. the first delivery..
While courts .of law- permit and protect assignments of choses in action to-; a certain extent, yet there can be no. right of action at common law<by the assignee in his oWn name, except upon an-express promise, but the euit may be in the name'of the assignor for the'benefit of the assignee', *666and in that ease the defendant may avail himself of all the defences he might have had against the. assignor.1 Parsons on Con., 3d Ed., 195, 196.
The assignees can have no greater or other right than the assignor had at the time of the assignment. No right was created against Stokes by the assignment. Stokes contracted with Baars, and not with the assignees. The latter cannot take the position of the assignor without the assent of the other party to the contract. There is no reciprocity oí duty as to them ; no action could be maintained against them for a breach of the assigned contract. Baars had become disabled to comply with his side of it, and it is laid down that when a party has incapacitated himself from performing, the same consequence follows as if he had absolutely refused to perform. In Robson vs. Drummond, 2 B. & Ad., 303, Robson and Sharpe were partners, and Sharpe made a contract in his own name with : Drummond for the hire of a coach for five years, Sharpe to keep it in repair. The contract was with Sharpe alone, although Robson & Sharpe carried on the business. At the end of three years Sharpe dissolved the partnership with Robson and transferred the coach, and the entire business to the latter. Robson offered to go on and carry out the contract of Sharpe, but Drummond refused to have anything to do with him. Sharpe said he could not complete the contract as he had assigned it to Robson. Robson & Sharpe then sued Drummond on the contract, and were non-suited. In the X. B., Parke, J. said, that “ the very fact of Sharpe having transferred his interest to Robson, was equivalent to saying, I will not perform my part of the contract.” Patterson, J., said: “ It was in substance a ease where a person having made a contract in his own name attempts to back out of it, and transfer it to a third person. That he had no right to do.”
*667The ease of Reader vs. Knatchbull is referred to by counsel for plaintiff in.error, but thé only report of the-case we have been able to find is in a note in 5 T. R., 218, where it is said that plaintiff declared upon an agreement, by' defendant, to deliver him a quantity of Manchester cottons. The defence was, that after the making of the contract,the plaintiff' had compounded with his creditors. Buffer, J., told the jury that if they believed the plaintiff wás really in- such a situation as- to be unable to pay for the goods, if delivered,-that was a good defence in point of law.
Counsel for plaintiff in error also refers' to ex parte Chalmers, In re Edwards, cited in Benjamin on Sales, §759, which says that “ if goods are deliverable by successive instalments, the assignee of the bankrupt purchaser -cannot adopt the contract and claim further deliveries under it, without paying the price of what was delivered, .prior to the bankruptcy.”
Defendant in error replies that this rule is not-applicable because it was the case of a bankrupt against whom all personal remedies are taken away by the discharge, and the law will not allow the assignees to insist upon the performance by the other contracting party from whom all remedy is taken, without paying his claim against the bankrupt; and this is a case of a voluntary assignment by an insolvent, against whom the plaintiff in error retains all personal remedies for breach of the contract. We think this argument proves too much against the position of the defendent in error, considering that the' contract in this case is entire, and not servable. Why should the defendant pay the assignees damages, which he would not be obliged to pay to the assignor, if no assignment had been made ? And besides the assignees take only what is assigned, and if the assignor had or could, or could have had no claim for damages, then no such claim passed by the assignment. *668If the assignees take anything by the assignment,. they take it entire and cum onere, and they cannot be allowed to take.it partially; they must accept or reject it in toto. Put the suit is in the name of the assignor, and he cannot recover for the benefit of assignees and creditors what he could not demand for himself.
.Our conclusions are: First: That this contract is entire and not severable. Second. That the plaintiff did not pay for the timber delivered, though payment was demanded, and that this was a positive and absolute repudiation and-abandonmentof the contracton his part, giving defendant the rightto treat it as rescinded, and to refuse further delivery under?, it. Third. That after such breach by the purchaser, -he cannot maintain a suit in his own behalf or in .behalf, of his assignees, to recover damages for non-performance. Fourth. That Baars having become disabled to perform by insolvency and an assignment to creditors, neither1, he nor his assignees could claim damages for a failure to make future delivery of timber under the contract to the assignees, with whom he had not contracted.. •
In view of our further conclusions, it is necessary to examine the pleas in detail, and pass upon the sufficiency of each of them. What has already been said will indicate what judgment ought,, in our opinion, to be given upon the several demurrers to the pleas. The demurrer to the pleas reaches back to defects in the decía,ration, and if that is substantial!}? defective it must be amended before an issue of fact can be required of the defendant. -
The declaration sets out a contract for the delivery of a quntity of timber, delivery to. be made “ as fast as water toill permit, and to be completed not later than 15th June, 1880.”.
This condition is material. It is that the “ water will permit ” performance. If the water would not, permit de*669livery, (a contingency here expressly recognized,) the defendant was not bound to deliver, and there would be no breach. He cannot be held to perform what is impossible; when he has expressly stipulated that he would make delivery only in case delivery is practicable on account oh the condition of the water. This 'is the only reasonable' construction to be given to this agreement. It is not an absolute contract to deliver in any event, but only so far as water will permit such delivery.
Such being the proper construction of the agreement, it is- necessary to show by the declaration what is not therein alleged, that defendant was not prevented by water from making delivery, for otherwise he could not be charged with- the breach by neglecting to deliver. .....
He was not bound to deliver unless the water would permit. In Russell vs. Nicoll, 3 Wend., 112, where Nicoll had sold to Russell 500 bales of cotton, to be delivered on its arrival from New Orleans at New York by the first day of Juno, to be paid for on delivery, and only eleven bales had arrived at New1 York, w'hich Nicoll refused to deliver, Russell having sued on the contract' alleging failure to deliver, it was held- that the contract was executory; that it was entire and ' Nicoll was not obliged to deliver the eleven bales, the residue not having arrived, and though the time of delivery was named the transfer depended upon the-arrival of the cotton, an event not absolutely within the control of either party, and might néver happen, and-that if the cotton should not arrive by the first of June the plaintiffs were not bound to receive and -pay for it, .nor. the defehdants to deliver ih 1 ■ 1 - , - - ■..■ - . ,
The principle of' that decision is applicable to this agreement in respect to the condition of delivery.
Eor; the defect -in this’ declaration in omitting to ¡allege the possibility of performance' according to the terms of *670the agreement, the plaintiff in error insists that the demurrers should not have been sustained, and we think he is right.
The judgment is reversed and this cause is remanded with directions that the judgment sustaining the several demurrers be vacated, that said demurrers be overruled, and that. the plaintiff be permitted to amend his declaration within such time as may be named, and in default thereof that judgment be given for defendant. .