The opinion of the court was delivered by
Lewis, J.— It was held in Shaw v. The Turnpike, 2 Pa. R. 461, that “ either party may waive any right introduced into, or provided by the contract, either expressly, or tacitly by acts or declarations fairly indicating a relinquishment of any provision or part of a provision ; and without the performance of which, unless relinquished or waived, a recovery could not be had ? Previous to the decision of Boone v. Eyre, 1 H. B. 273, n., it seems to have been taken, that nothing less than entire performance of a mutual covenant would entitle the party to his action for the breach on the other side. In that case, however, a more reasonable and just rule was adopted, by which a mutual or dependent covenant, which goes but to apart of the consideration on both sides, and whose breach may be compensated in
*284damages, is to be treated exactly as if it were separate and independent. In Ligget v. Smith, 3 W. 332, it was stated by the Chief Justice, that “this was distinctly the principle,” decided in Boone v. Byre, and “ that it was established by a train of decisions both in this country and in England.” As a general rule, it is undoubtedly true, that where a contract is entire, it is incumbent on the plaintiff to show a performance of all that was stipulated on their part to be performed, and on failure so to do, he is not entitled to recover anything. But there are exceptions to this rule, and one exception is, that where there has been a substantial and bond fide compliance on the part of the plaintiff with his contract, he shall not be precluded from a recovery of his compensation on account of some slight imperfection, for which the defendant may be compensated in damages. Chambers v. Jaynes, 4 Barr, 43; Liggett v. Smith, 3 Watts, 331; Preston v. Finney, 2 W. & S. 53; Wilhelm v. Coal, 2 Id. 26. The case of Chambers v. Jaynes, shows that this exception is not confined to a defective execution, but that it embraces cases of deficient or partial execution. That case was one in which the jury found, in their special verdict, that the plaintiff had omitted to perform a part of his contract. He was nevertheless, permitted to recover, the defendant being entitled to a deduction to the extent of the damages for the breach of the contract by the plaintiff. The case of Poulton v. Lattimore, 9 B. & C. 259; 17 Eng. C. L. 373, shows also, that although the warranty that the seed was “good new-growing seed,” was given in evidence, as a defence to the action for the price, yet if the plaintiff had been able to prove that it was of any value whatever, the retention and sale of it by the defendant, would have entitled the plaintiff to recover for its value. Little-dale, J., remarked, in that case, that “if an action be brought by the vendor for the price, the defendant may prove the breach of the warranty, either in diminution of damages, or in ansiver to the action, if the goods be of no value.” In Hayward v. Leonard, 7 Pick. 184, Chief Justice Parker, speaks of the different views entertained at different times on the question, how far a party may have remedy who has entered into a special contract to perform work for another, and to furnish materials, and the work is done, and materials furnished, but not in the manner stipulated for in the contract, so that he cannot recover the price agreed by an action on that contract, although the work and materials are of some value and benefit to the other •contracting party. The Supreme Court of Massachusetts decided in that case, that the modern authority is in favor of the action on a quantum meruit for the work and labor done, and on a quantum valebat for the materials furnished; and that, upon the whole, it is conformable to justice, that the party who *285has the possession and enjoyment of the materials and labor of another, shall be held to pay for them, so as in all events he shall lose nothing by the breach of contract.” In Preston v. Finney, 2 W. & S. 55, it was held, that if the defendant wont on under the contract, after the time stipulated for performance, paying money, receiving and using the articles contracted for, it was too late to object that they were not delivered within the time prescribed. The time of performance may be a circumstance quite as material as the quality of the article contracted for; and that neither-goes to the whole consideration, may be inferred from the acceptance and use of the article delivered. There is certainly a great distinction between articles of personal property contracted for, and work and materials to be furnished in the erection of buildings on the land of the defendant. In the first case he is, in general, under no necessity whatever to accept of an article not furnished according to the contract, while in the latter, he is under coercion either to accept of the imperfect building, or lose the use of his real estate on which it . is erected. But even in the latter case, it was held in Liggett v. Smith, that the use of the building as a warehouse was sufficient to show that the covenant for flushing in, or filling in all the openings in each corner of brick with mortar,” went not to the whole consideration, but only to part of it, and that the plaintiff was entitled to recover his demand, less a sum sufficient to compensate his defective execution of the contract.
In the case before us, the acceptance of the wheat, and the delivery of separate receipts for each load, specifying the number of bushels by weight, was strong evidence that the article corresponded in quality with that contracted for; and that circumstance, in connection with the declaration in the defendant’s note of the 16th of October, 1852, that he would receive no more, unless sent as per agreement, and that he would claim a deduction for the inferior quality of wheat he had received, is decisive of his liability for the value of what had been delivered. Against this demand he has a right to set off the. damages arising from the non-performance of the contract, if it be not rescinded by the parties. If the plaintiff’s wheat, so far as it had been delivered before the defendant’s letter was written, was not of the quality required by the contract, that letter, instead of amounting to a recision, was nothing more than a call for faithful performance. If, on the contrary, the wheat previously delivered was such as the contract required, the refusal to receive any more was, under the circumstances, in substance, a refusal to comply with the contract, which amounted to a recision at the election of the plaintiff. In that aspect of the case, the latter may recover the value of the wheat delivered, without deduction for damages for not delivering the residue. *286The quality of the wheat delivered should be left to the jury. This is in accordance with the lucid opinion of President Woodward, as affirmed by this court in Campbell v. Gates, 10 Barr, 483.
Judgment reversed and venire de novo awarded.