The plaintiffs agreed to ship to the defendants 5500 tons of iron, 500 in June, 1851, 2500 in July, and 2500 in August, if it were practicable within that time. The defendants agreed to give their notes for each parcel of iron that should be shipped, on receiving each bill of *120lading. The iron was not shipped in June, and only part of •what was required was shipped in July, and part of what was required, in August; and by the 25th of October only 2900 tons were shipped. All the 2900 tons were received by the defendants. There is no proof to show any excuse for not delivering the iron in due time—no proof that the defendants made any objection to its not being delivered in due time—nor that they .made any protest against this delay; nor that they urged or asked for the prompt delivery of the rest. But it appears that, having received the iron without any objection, they neglected to give their notes from that time until April 24,1852, when the action was brought. The defendants, by accepting part of the iron out of time and without objection, waived the part of the contract which required that portion to be delivered in due time, or admitted that it was delivered as soon after that time as practicable. In either case they were bound to give their notes. They neglected to do so. This discharged the plaintiffs from an obligation to deliver the rest of the iron until the defendants should furnish their notes for the portion delivered, and entitled the plaintiffs to commence a suit for the notes which should have been given, without tendering a delivery of the rest of the iron,.although the time for the delivery of all was past before the suit was brought.
The contract may not be rescinded by the omission of the defendants to give their notes; but the obligation of the plaintiffs to deliver the iron is suspended by that omission. Take a familiar case, and similar to this, as an illustration. A builder agrees to erect a house for a certain sum, to be paid by installments ; a certain part of the sum when the first tier of beams is on, another certain part when the second tier of beams is on, and so on, throughout the work. He finishes the house so far as to have the first and second tier of beams on, and the owner refuses to pay him ; he waits patiently for his money until the time elapses when the whole house should have been completed, and then sues for the sums to he paid under the contract when the first and second tiers of beams should be on. The owner denies his liability, because the whole house was not finished in *121due time, and appeals to the laws of New-York, as deciding that he never shall be liable for what was done for him, although he was in fault in neglecting to pay as the contract required, and that neglect would probably prevent the builder being able to complete. Such a defense could never be sustained.
This case differs from that only because in this the iron was not delivered in due time. But it is conceded that the acceptance of the iron by the defendants waived the objection as to time. That being so, the first fault, and the continuous fault, is in the defendants, in ■ not giving their notes, and makes this case precisely like the one proposed.
If a servant is employed for a year at $120 per annum, to be paid in equal monthly installments, and leaves his employer before the year is out, because he is not paid the installments due, can he not recover at the end of the year for those installments ? If a tenant hire a house for a year at a certain sum, payable in equal quarterly payments, and he is evicted, after the end of the third quarter, by h.is landlord, is the eviction any defense for the installments of rent previously due ? A contract to pay for land by installments, and for a delivery of the deed when the last installment shall be due, is different, because there the consideration on one side cannot be and is not intended to be divided into parcels ; and there it is properly decided, that if the vendor do not sue until the last installment fall due, he must aver a tender of the deed. But a different principle would apply, if the contract were to buy 100 different lots of land and to pay for each lot whenever a deed for that lot should be tendered. If the title were to fail as to one lot, the vendor could, even after the time for the delivery -of all was expired, recover for the ninety-nine lots conveyed, and justice would be done in allowing him damages for the non-delivery of the deed as to the one lot
It was said that the law opposes the splitting up of actions, and that accordingly, if a bond be payable by installments and the plaintiff sues after the last installment is due, and claims for only the prior installments, he cannot recover afterwards for the last. In the case of a bond the judgment is for the penalty, which covers the whole cause of action, and prevents a new re-' *122covery," except under statutory regulations. If the rule supposed would apply to a covenant in one deed as to matters to be done at different times, and for considerations distinctly applicable to each thing to be done, it would be on the ground that the law would presume that no other breaches of the covenant existed, except such as were alleged in the first action, if they could have been alleged in that action. But that rule would not prevent the plaintiff, even after all the time had expired, from suing and recovering for certain breaches of the covenant; he showing that he had omitted to perform the subsequent parts of the agreement for which the defendant; was to pay him a further amount fully equivalent to what he was to do, because the defendant had, by his refusal to perform the prior parts of the agreement, disabled the plaintiffs from proceeding further in the contract, or because the defendant had thus excused the plaintiff from proceeding further in it. The neglect of the defendants to give their notes for the iron delivered to them constituted such an excuse in this case. The answer admits that the iron was received and accepted by the defendants. This may be read at the trial as an unqualified admission of a fact, and has there all the incidents of such an admission. The answer then denies that the iron was received under the contract, but substantially states that it was received under a protest. This is matter which the defendants are to prove, and they cannot read their answer to prove it. The fact of the acceptance of the iron "being admitted, and there béing no proof how it was accepted, the law-implies that it was received as a satisfactory compliance with the contract, as to the part delivered, and a waiver of any objections as to its not having been delivered in due time.
Even if there were a protest that the defendants should not be bound to pay for the part delivered, if the rest should not be delivered in a reasonable time thereafter, that protest would not exonerate the defendants from liability to give their notes, pursuant to the contract, for the part actually delivered. They should have given their notes, and protested that they would not hold themselves liable on them, nor excuse the past delay, nor accept or pay for the rest of the iron, but would claim' damages *123for all breaches of the contract unless the rest of the iron should be duly delivered. The decisions of this state are principally relied on by the defendants. Their authority controls this court; but they contain no principle contrary to what is here stated. If there is an entire contract, and no payment to be made by the defendants until the whole contract be completed, the decisions in this state are strict, and do not allow a recovery for the part performed. But that is because the bond is so. The parties have chosen, by their agreement, to say that payment shall be made only when all is completed. Here the bond is not so ; the parties have prudently chosen to say that payment shall be made as the parcels are shipped. The principle of both decisions is the same—that the parties may be a law to themselves, and that the courts will carry out their contracts as they make them.
[New-York General Term, June 1, 1854.Judgment should be entered for the plaintiffs.
Judgment accordingly.
Mitchell, Roosevelt and Clerke, Justices.]