Dissenting. — I am unable to concur in the conclusion reached by my associates. The action was brought upon the theory of, and the complaint alleged, a breach of the contract on the part of the' appellant, the lumber company, and under the terms of the contract there was no breach shown on the part of the lumber company.
It was alleged in the complaint that the lumber company “verbally notified plaintiff to vacate and quit using said camp 4 spur.” That allegation the evidence of the plaintiff himself shows is not true. On the petition for rehearing counsel for respondent for the first time contends that said contract is severable, and that an action might be maintained upon it by the plaintiff pro tanto. But this action was not brought nor prosecuted on that theory.
There is some conflict in the authorities as to what contracts are severable, some courts holding that where the subject matter is divisible and the terms of the contract do not show an intent to treat it as an entirety, and where by the terms of the contract monthly deliveries may be made, and the contract price for such deliveries by the terms of the contract become due upon receipt of the goods, then in the event of part performance, a recovery can be had upon the contract, pro tanto, without delivery of the full amount of property contracted' for. And some courts hold that where a specific amount is named in the contract, regardless of the terms of payment for the deliveries so made, the contract is not sever-able, while in some states it is held that such contracts should *381be construed as severable where payments become due on delivery and that a recovery pro tanto may be had.
I do not think the contract in this case comes within the rule laid down in those states most liberal in construing contracts as severable so as to allow a recovery pro tanto. The very essence of this contract is entirety. By its express terms full performance is a condition precedent to have the deferred payments made, — in order to become entitled to the deferred payments. The acts of the lumber company in accepting and paying in part for monthly deliveries of logs and retaining part until the full amount of timber is delivered ought not to be declared a severance of the contract, for in doing as it did the lumber company was simply complying with an express condition of the contract taken in its entirety, and that was not a waiver by it of the condition precedent as to deferred payments, to wit, the full performance by the plaintiff before such payments became due.
In Shinn v. Bodine, 60 Pa. St. 182, 100 Am. Dec. 560, the court said:
“The entirety of a contract depends upon the intention of the parties and not on the divisibility of the subject. The severable nature of the latter may often assist in determining the intention, but will not overcome the intent to make an entire contract, when that is shown.”
See, also, 3 Page on Contracts, sec. 1485; 9 Cyc. 650, and authorities there cited.
The claim to recover pro tanto where advancements have been made, as in the case at bar, but the balance which is sought to be recovered is by the contract payable after complete performance, has been determined adversely by the Maryland court in a very important decision rendered since the article in Cyc. by Judge' Lawson was written. (See Oldewurtel v. Bevan, 117 Md. 645, 84 Atl. 66.)
Counsel for respondent, before bringing this action, evidently conceived that it was necessary to show a breach of said contract on the part of the lumber company and brought action on that theory, and on rehearing he contends that the contract is severable, when under the express provisions of *382the contract the plaintiff agreed “to complete this contract by cutting, decking and delivering along said spur above mentioned all of the logs covered hereby, on or before the first day of November, 1912.” And by paragraph 7 of said contract the payment for the logs was to be made as follows: “It is further agreed by and between the parties that the payment for said logs shall be made as follows: Four dollars ($4.00) per thousand feet on the 15th day of each month for all logs scaled the previous month. The balance due the party of the first part to be paid ninety-one (91) days after the completion of this contract.” The contract price for the white pine was $8.50 per thousand feet, and for the other kinds of lumber, $4.50 per thousand feet. It will thus be seen that the sum to be retained until the contract was completed was $4.50 per thousand feet on the white pine and 50‡ per thousand feet on the other kinds of lumber, and the part retained did not become due until ninety-one days after the completion of the contract.
Under such a contract, to hold that a party may abandon the contract and recover the. balance of the purchase price retained and not yet due, would be holding out or offering an inducement to a contractor to violate or abandon his contract whenever he concluded he could make money by doing so, with the understanding that the other party to the contract could only recover in any event the actual damage sustained by him by reason of such violation. Such a rule, it seems to me, places a premium on the violation of contracts, since under it the party injured could only recover the actual amount of his loss by reason of such violation and would be required to incur expensive litigation to recover that which would perhaps in the end result in a loss to him who has kept his contract.
Said contract is not severable, and as I view it, the plaintiff is not entitled to recover the part of the purchase price for the logs already delivered that was to be retained and not paid until the contract was completed.
The judgment ought to be reversed.