The opinion of the court was delivered by
Reed, J.The first point pressed by the counsel for the prosecutor is, that the contract, as its terms were found by the trial court, is an entire contract; that the condition upon which the plaintiffs were to be paid for the castings was, that they should cast and deliver all of the fourteen tons of pig iron furnished; that this condition precedent being still unperformed, no right of action arose for a part payment.
The trial court found that the contract was to continue, at least, until the quantity of pig iron advanced should be consumed. This finding of fact is here conclusive.
*147The trial court then decided that the plaintiffiwas entitled to payment upon the delivery of each parcel of castings ordered.
This is the first error assigned.
The question, whether a contract is entire, or divisible, in ■respect of the question of payment of the consideration, cannot be solved by the application of any fixed legal standard. It depends upon the intention of the parties, to be gathered .from all the circumstances surrounding the agreement and from the face of the contract, if in writing.
It is quite as much, as a rule, a question of fact as of law, particularly where the terms of the agreement rest in parol.
I think that the facts found justified the trial judge in his •conclusion, that this contract was, in respect of payment, apportionable. Nothing was said relative to the time or times •of payment. The duration of the contract until all the pig iron should be used was inferential from the general features •of the entire arrangement, and was not specifically mentioned in any of the conversations which constituted the agreement. 'That it could not have been the understanding of the parties that the plaintiffs should wait until all the pig iron had been worked into castings and delivered, appears from one fact ■which appears in the case.
It appears that in the negotiations the plaintiffs stated that they had not money for the purchase of pig iron, and defendants, for this reason, entered into the arrangement to furnish it. Now, it is in the highest degree improbable that the parties could have intended that the plaintiffs, who had not money ■or credit to buy pig iron for their work, should wait for their pay until all this work was executed. This improbability is increased when it is recalled that the castings were to be delivered as ordered by the defendants, and so it was in the power of the latter to postpone the final delivery indefinitely. ■So, although the agreement Was. to exist until the fourteen tons of pig iron were consumed, there is nothing in the terms ■of the contract which, by express stipulation or by necessary *148intendment, precludes the plaintiff from a recovery upon the delivery of each order.
In the case of Roberts v. Havelock, 3 Barn. & Ad. 404, the plaintiff was employed and undertook to put a ship in thorough repair. Before this was completed a dispute arose between the parties. The plaintiff was called upon to put the vessel into a fit state to continue her voyage, but refused to-do so until he was paid for the work already done. It was held that there was nothing in the contract which bound the plaintiff to do the whole repairs and make no demand till they were completed.
In the case of Withers v. Reynolds, 2 Barn. & Ad. 882, Reynolds agreed to supply Withers with wheat strawtill June 24th, at a fixed sum per load, to be delivered at the rate of three loads a fortnight. Lord Tenderden said: “ There is, I think, no doubt that by the terms of this agreement the plaintiff waste pay for the loads of straw as they were delivered. If that were not so, the defendant would have been liable to the inconvenience of giving credit for an indefinite length of time,, and, in case of non-payment, bringing an action for a very-large sum of money, which does not appear to have been intended by the contract.”
Other samples of divisible contracts, similar in character to-these, are given by Dr. Wharton .in his book on Contracts, §§■. 712, 899.
I conclude that there was no error in the judicial conclusion, upon this point.
It is, secondly, insisted, that there was error in holding that there M'as a rescission of this contract, which shut the defendants off from setting up a claim by way of recoupment for damages resulting from a failure of the plaintiffs to perform, after the 13th of May, 1889. I think the decision of the first question has an influential bearing upon the correctness of this-conclusion of the trial court. For, having fixed upon the defendants the duty of making payments upon each delivery, I think there appears in the evidence a support for the conclusion that the defendants not only announced a different view *149of their duty under the contract, but asserted their intention to stand upon their supposed right to withhold further payment until the work was finished. It is true that the plaintiffs had been slow in making deliveries of the castings ordered. They were received, however. But, induced by bad feeling resulting from this and other causes, the defendants gave the plaintiffs to understand that they would have to wait for their money until the end. There was evidence to support that view. This was equivalent to a refusal by the defendants to be further bound by the terms of the contract and conferred upon the plaintiffs the right to cease deliveries. Withers v. Reynolds, supra; Blackburn v. Reilley, 18 Vroom 290.
And'these counter refusals were a ground from which the trial court could draw a conclusion that the contract was rescinded. Coleridge, J., in Rex v. Whiston, 4 Ad. & E. 599, 606; notes to Cutter v. Powell, 2 Sm. Lead. Cas. *36; Ad. Cont. *1219.
"When this is considered in connection with the conversation between the parties touching the cessation of their business relations under this agreement, and with the recaption of the unused pig iron, and the removal of the patterns, there seems to be no absence of a ground to base a conclusion that the contract was rescinded.
When the correctness of this finding is admitted, then the ^action of the court in respect to the defence of recoupment is unassailable.
The only part of such defence in dispute is built upon the .continued existence of the contract after the date of rescission.
The judgment of the Court of Common Pleas, affirming the judgment of the District Court, is affirmed,