From the judgment in this case both parties have appealed. On the findings the plaintiff seeks to obtain a larger judgment; the defendant to reduce the judgment by the allowance of his counter-claim.
Assuming that the default mentioned in the findings justified the plaintiff in refusing to go on in the delivery under.it, he had his election to treat the contract as rescinded, and recover, on a quantum meruit, the value of the materials already furnished, or sue upon the agreement and recover for the amount furnished according to the contract, and for the loss of profits, if any, he had sustained by the interruption: Jones v. Judd, 4 N. Y. 414.
From the absence of any averment in the complaint, in the case at bar, of the value of the materials furnished, it is plain that the suit is not upon an implied promise, but the whole frame of it shows that it is upon the contract: Cox v. McLaughlin, 54 Cal. 605.
If there has been such a breach' as to justify the plaintiff in declaring the contract at an end, while the defendant can not treat it in existence for the purpose of being by him specifically performed; yet the plaintiff may, if he please, consider it existing only for the purpose of giving a remedy for the breach: Hale v. Trout, 35 Cal. 229, and cases cited.
The plaintiff can not recover in this action for the payments made due by the terms of the contract at the end of the year, the suit having been commenced before that time. *91•The stipulation in the contract with reference to the one fifth payment was a term of credit given by the plaintiff to the defendant, and an action for the recovery thereof can not be maintained before that term has expired: Girard v. Tagyart, 5 Serg. & R. 19.
The error complained of on the part of the defendant is in refusing to allow his counter-claim. It was disallowed on the grounds that by the default of the defendant in refusing to pay one of the installments due on the delivery of lumber, the contract was firsfj broken by him, and the finding states “that said breach was the ground . and reason of the refusal of plaintiff to deliver lumber and slabs ” subsequent thereto.
The conclusion of law was that the neglect and refusal to pay the amount due for the lumber “ was a legal justification to plaintiff in his refusal to deliver lumber or slabs to defendant subsequent to that time, and bars-defendant from recovery of any damages for such non-delivery.”
The defendant claims that this conclusion of law does not follow from the finding, that the contract is apportionable.
By a reference to the contract itself, it will be seen that it contains at least two separate and distinct subjects, the one in no wise dependent upon the other. One is for the delivery of lumber upon certain terms and conditions, and the other for the delivery of slabs. The latter is as separate and distinct from the former as though it had been made at another time and by a separate instrument: 2 Parsons on Contracts, 517.
The refusal to pay any installment' due on the delivery of lumber is no legal .justification for the non-delivery of the slabs, and does not bar the defendant from the recovery of damages for its non-delivery. This counter-claim should have been allowed.
Another point raised by the defendant is, that the conclusion that the neglect and refusal of the defendant to pay the installment due on the lumber at the time of the alleged breach was a legal justification for plaintiff in refusing to deliver lumber subsequent to that time, is not supported by the findings.
We are of the opinion that the position taken by the de*92fend ant is correct, and is supported both in reason and by-authority.
The parties undoubtedly could have made the payment of any installment a condition precedent to a future delivery, and the non-payment of any such installment such a substantial violation of the contract as to authorize the other party to abandon it. But they have not; nor can it be inferred from the language used.
The case of Palm et al. v. The Ohio and Mississippi Railroad Company, 18 Ill. 219, which is quoted from and approved by the supreme court of California, in Cox v. McLaughlin, 54 Cal. 605, is very strong authority upon this point, to which many cases, besides those referred to in the brief of defendant’s counsel, might be added.
The case of Hale v. Trout, 35 Cal. 229, which is cited by counsel for plaintiff in opposition to this doctrine, is not a case in point. In that case, “the defendants notified the plaintiffs that they would not receive or pay for any more lumber under the agreement, as they believed the plaintiffs had broken said agreement, and that they, defendants, would hold said agreement at an end.” Here was a total abandonment of the whole contract, which would unquestionably authorize the plaintiffs to so treat it themselves. The language used by the court in deciding that case, and which is relied upon by counsel for plaintiff here, was used in view of the above state of facts, and to answer and negative the proposition of the defendants, that notwithstanding this 'total abandonment on their part, the plaintiffs were bound to tender the remaining portion of the lumber called for by the contract.
The case of Phillips and Colby Construction Co. v. Seymour et al., 91 U. S. 646, is also relied upon by plaintiffs as very strong authority in their favor. At first glance, and disconnected from the facts of the case, and the point under discussion, this would seem to be so. The whole argument of counsel is based upon the following expression in the opinion of the court in that case: “Plaintiffs here had already performed, and the defendant failed to do its corresponding duty under the contract; and defendant having defaulted *93on a payment due, plaintiffs are not required to go on at tbe hazard of further loss.”
This language was used in deciding the point raised that the complaint was fatally defective because it did not aver that the plaintiffs were ready, willing, and able to perform their covenants; and the court say that was different from a case where plaintiffs have done nothing, and were required to put the defendant in default by offering to perform, or showing a readiness to perform, and then follows the language quoted. In the statement of the case the court say that the contract, which seems to have been before them, but not copied in the case, was drawn with “ minuteness of detail” usual in such cases; and as no question was made upon the right of the plaintiffs to declare the contract abandoned, it is not a violent presumption to say that, in all probability, in a contract involving so large an expenditure of money, the right to so treat it was expressly provided for. In that case, the court say: “We are only answering the argument that the plaintiffs have lost all right to sue on the contract by their failure to complete the sections in the times named.”
The questions raised in this ease were neither raised nor decided in that. To give the language used in the case referred to the force and effect contended for by the plaintiff would in effect overrule the whole current of authority upon this question.
We are also referred to the case of Withers v. Reynolds, 2 Barn. & Adol. 882. That case was asswm/psit for not delivering straw according to the following agreement: “John Reynolds undertakes to supply Joseph Withers with wheat straw, delivered at his premises until the twenty-fourth of June, 1830, at the sum of thirty-three shillings per load of thirty-six trusses, to be delivered at the rate of three loads in a fortnight ; and the said J. W. agrees to pay the said J. R. thirty-three shillings per load for each load so delivered,” etc. It appeared that the plaintiff had refused to pay for the straw upon delivery, and it was contended that he was not bound to do so, and that as no time was named for the payment, he might defer it till the expiration of the contract, or that, at all events, the promises to deliver the straw and to pay for it were independent, and should be enforced by cross-actions. *94But the court held that he had a right to-be paid toties quoties on the delivery of each load, and the plaintiff’s refusal to do so gave him a right to rescind the contract.
In deciding that case, Patterson, J., says: ■“ If the plaintiff-had merely failed to pay for any particular -load, that, of itself might not have been an excuse to the defendant for delivering no more straw; but the.plaintiff here expressly refuses to pay for the loads as delivered; ■ the defendant, therefore, is not liable for ceasing to perform .his part of the contract. In commenting on this case, in Franklin v. Miller, 4 Ad. & El. 599, Coleridge, J., says: “ The rule is, that in rescinding, as in making contracts, both parties must concur. In Withers v. Reynolds, each, load of straw was to be paid for on delivery. When the plaintiff said that he would not pay for his loads on delivery, that was-a total -failure, and the plaintiff yas no longer bound to deliver. In such a case, it may be taken that the party refusing has abandoned the con-. tract.”
The facts of the case, and reasoning of the court in Withers v. Reynolds, make it an- authority against the plaintiff in this case.
The judgment of the court below is reversed, with costs of ■ this appeal against the plaintiff, and the cause is remanded • to the third district court, with instructions to proceed in accordance with this opinion.
Hunter, C. J., and Twiss, J., concurred.