delivered the opinion of the court, October 5th, 1885.
This case comes before us in an unsatisfactory manner. The theory of the defence was that the contract was for the sale and delivery of six carloads of corn to be paid for at a price per bushel on the delivery of each carload,'by means of the acceptance and payment of a sight draft for each carload. There was evidence in support of this theory, the most precise and persuasive of which came from the plaintiff on. the v. itness *239stand, and from his act of accepting and paying the draft drawn for the first carload. He also said the price-was to be by the bushel and named the amount, 45§c. for yellow and 45] for mixed, and the defendant’s witness concurred that the price was to be by the bushel, but did not name the price.
The chief complaint of the defendants is, that under the charge of the court, they had no hearing before the jury on their theory of defence, and a careful examination of the charge appears to sustain the complaint. This is partly the fault of the defendants, because they might have exhibited their theory in a point expressing it intelligibly, and asked the instructions of the court, but they did not do so. The only point they did present mingled a question of the authority of the agent with a refusal of the plaintiff to accept any draft, and asked a peremptory instruction for a verdict upon those two matters only, when they alone would not necessarily result in a verdict for the defendants, even if found as stated in the point — that would depend upon other facts not expressed or provided for in the point. We cannot say therefore that there was error in the mere refusal to affirm the point in the terms in which it was propounded.
But in other respects we think the charge tended to mislead the jury, and for that reason the case must be reversed. Thus, the learned judge said in his charge : “ If the jury, from the evidence, find the contradrteHim-ve-heenr-as stated in the testimony of the defendants, and made with Moore by the defendants through their agent, it was an entire contract and defendants were bound to furnish and deliver the corn before demanding pay, and if they failed so to do they would Iso liable in damages if be suffered loss. If the jury find from tl .,-'huh; evidence that there was a contract made by defendants 1 ■ 'tough their agent, with plaintiff for the sale to him of six oai loads oí com to be delivered to plaintiff at Landmiilo at different times, and the consideration or money for if. was apportioned or to be paid on each item or carload and noi; entire or single it was a severable contract, and rofi: to honor ono draft would not rescind it, and plaintiff would be entitled to recover for a breach of it.” According to this, the plaintiff was entitled to recover in any event, whether the contract was entire or severable, and the only disore!ion which the jury bad was to assess the damages. Nor did A matter under this language what brevehu. Inal been committed by the plaintiff. If he had refused to pay for the corn A toady delivered he could, nevertheless, require tlw dAbmhjA to continue delivering, if the contract was entire, and if A was severable the failure of the plaintiff to perform bis part of each item of the contract, did not Authorize the defendants to decline performing all the items *240of the contract on their part; and if they did so decline the plaintiff could mulct them in damages for so acting. We do not think this was a correct view either of the facts of the case or of the rights and duties of the parties. It does not seem to us that the contract between these parties was an entire contract in any view of the testimony. No witness for the defendants or for the plaintiff testified that the corn was all to be delivered before the price was to be paid, or that the sale was a sale in bulk, the whole consideration being an entirety and to be paid at one time. In Lucesco Oil Co. v. Brewer, 16 P. F. S., 351, we held that whether a contract was severable or entire depended upon the character of the consideration, thus: “It is the consideration to be paid and not the subject or thing to be performed that determines the class to which a contract belongs. Its entirety or separableness depends not'' upon the singleness of its subject or the multiplicity of the items composing it, but upon tiie entireness of the consideration, or its express or implied apportionment to the several items constituting its subject. If the consideration is single's the contract is entire, whatever the number or variety of the items embraced in its subject; but if the consideration is apportioned expressly or impliedly to each of these items the, contract is severable.” As the defendants’ witness, Clark; testified that he sold six carloads, deliverable at different times, and payable at a price per bushel by drafts at sight, there was an entire absence of an express agreement that the whole price of all the carloads was to be paid at one time, and after the delivery of the entire quantity, and a strong inference that drafts at sight were to be payable whenever drawn and Breach delivery. It was error, therefore, for the learned court below' to say absolutely that -if the defendants testimony was believed the contract was entire. The question as to the char- " aeter of the contract should have been submitted to the jury upon all the evidence, and then they would have considered it upon the testimonyboth of the plaintiff and the defendants, and viewed in this'maimer they could not consistently with the evidence, have found an entire contract.
Then they should have been told that if it was the contract of the parties that the corn was to be paid for at each delivery, whether one car or more, and the plaintiff refused to pay for a delivery which had been accepted by him, without some sufficient reason for such refusal, he thereby authorized the defendants to rescind, and if within a reasonable time thereafter they exercised their right of rescission, the contract was a.fc - q end and the plaintiff could not recover. This view is expr.: Nal with reference to the state of the evidence exhibited upon * ho present record. Whether a contract when seve ‘‘ ch *241a character that one party may refuse to perform his part as to one of the terms, and nevertheless require the other party to continue full performance of his part of each term upon peril of damages for non-performance, is a much vexed question upon which neither the English nor the American courts are agreed, and as to which it is not easy to state a uniform rule. In this state we have held that where a contract consisted of several entirely distinct and independent parts, each of which could be performed without reference to the others, a failure of one of the parties to perform one of the terms did not authorize the other to rescind the whole contract and refuse performance of the other terms by the party in default in the first instance, when such further performance was subsequently tendered: Morgan v. McKee, 27 P. F. S., 228. But in this case there were eight separate contracts, each for the delivery of 500 barrels of oil at fixed times and a specified price. The action was on three of them by the seller against the buyer for refusing to accept after default in a delivery, and the question arose on a rejected offer to prove that the contract was entire for 4000 barrels, that the first four deliveries were accepted and paid for, that the fifth delivery was defaulted by the seller, and that when the next delivery was tendered by the seller the buyer gave notice of an election to rescind on account of the previous month’s default and declined acceptance of either that or the subsequent deliveries. We held that the offer could not be received because it contradicted the written contracts by parol testimony, because each delivery was the subject of an independent agreement, the breach of which would authorize a recoupment; in damages but not a rescission of the other contracts, and because the right of rescission was not exercised within a reasonable time. The case is not parallel with the present and contains no element which determines it. Nor is the case of Scott v. Kittaning Coal Co., 8 Norr., 231, any more in point. There the action was by the seller against the buyer for not taking, or not calling for, a large part of an entire lot of 50,000 tons of coal to be delivered on monthly calls by the buyer, of 6000 tons each, after having taken 18,000 tons which were called for and delivered, but not in exact accordance with the contract. The defendants contended that inferior coal was delivered among the 18,000 tons, and that they were thereby defrauded and authorized to rescind the contract as to the t remainder on that account. But wo held that while they! might have refused to accept the inferior coal, they had in fact* accepted it and sold it, and therefore could not rescind the contract because they could not restore the inferior coal, and had never notified plaintiffs of their intent to rescind. The caso does not raise the question which is presented in this. *242The ease of Reybold and Yoorhees, 6 Cas., 116, is more closely analogous both in its facts and in the character of the question determined. The action was brought by the buyer against the seller for damages for not delivering peaches under a contract to deliver the seller’s entire crop and receive weekly payments for all peaches delivered during each week. The buyer defaulted in his payment for the first week. The seller continued to deliver on the Monday following, but receiving no payment he on Tuesday stopped his deliveries. The buyer on the next day offered to pay and asked to have the deliveries continued, which the seller refused and thereupon the action was brought.
Lowkie, C. J., in speaking of the rights and duties of the parties in these circumstances, said: “The plaintiffs broke their contract by not paying up on Saturday, and the defendant had a right then to rescind it and seek another market. He continued another day to execute it on his side and again the plaintiffs failed. Then he rescinded, and a day or two afterward, the plaintiffs came and Avere willing to pay. We think they were too late. To relieve them would be to change their contract Avithout cause, Avhich we cannot do.” Other courts have held similar doctrine in similar circumstances, as in Bradley v. King, 44 Ill., 339; Dwinel v. Howard, 30 Me., 268; Stephenson v. Cady, 117 Mass., 6; Haines v. Tucker, 50 N. H., 307; The King Phillip Mills v. Slater, 12 R. I., 82. In the case at bar, it does not appear that particular times of delivery Avere fixed,-nor the quantity of each deliveiy. But it does appear in the testimony of both parties that payments were to be made when deliveries Avere made.
The defendants’ witness said the corn Avas to be paid for on sight drafts, but didniot say at what times or for what quantities of corn they AveiV^fco be draAvn. The plaintiff said drafts were sent Avith bill of lading attached and he paid the first and refused to pay the second, because he Avanted to see whether the defendants had shipped or would ship all the corn. [ This Avas not a sufficient reason for refusing to pay after he \had accepted and received the corn. If then the contract required payments on deliveries, and the plaintiff wilfully refused payment according to the contract, he thereby authorized defendants to rescind at their option.
The defendants did give notice of rescission at once if payment was not made of the draft for the last delivery and it was not. We think this right of rescission Avas exercised Avithin a reasonable time. We sustain the third and fifth assignments.
Judgment reversed and venire de novo awarded.