failure of performance is such as may be fully compensated in damages.38 But the rule does not mean that the object of the contract should be defeated by one single and final act or neglect by the defaulting party. For the same result may follow from a continued succession of acts or neglects, each of which is of minor importance in itself, but which in the aggregate thwart the purpose of the other party in making the contract. For instance where a seller contracts to furnish to the buyer a large quantity of steel at a fixed price per pound, a certain quantity to be delivered each month, a casual error in the kind of steel delivered in some shipments, which the seller is able and willing to correct, will not give the buyer the right to rescind the contract, but where the errors are so numerous and persistent as to subject him to serious trouble, it will warrant a rescission on his part.39

40

But although a partial failure of performance may not be of such a nature as to defeat the whole purpose of the contract or render its completion by the other party impossible, yet it may furnish ground for rescission where it relates to a matter which enters into the very substance of the contract and constitutes an integral and important part of it. The test, it is said, is to consider whether or not the matter in respect to which failure of performance occurs is of such a nature and of such importance that the contract would not have been made without it.41 For instance, where it is made a part of a contract of sale that the seller shall give the buyer a bond to protect him against loss, or against claims for infringement of a patent, or to secure the faithful performance of the contract, this provision is a substantive part of the contract, and failure to

Pac. 740; Miller v. Phillips, 31 Pa. 218; Peale v. Marian Coal Co. (C. C.) 190 Fed. 376; Hancock v. Tanner, 4 Stew. & P. (Ala.) 262. 38 Gatlin v. Wilcox, 26 Ark. 309.

39 Miller v. Benjamin, 67 Hun, 650, 21 N. Y. Supp. 1116.

40 Ballance v. Vanuxem, 191 Ill. 319, 61 N. E. 85; Light, Heat & Water Co. v. City of Jackson, 73 Miss. 598, 19 South. 771; Rownd v. Hollenbeck, 77 Neb. 120, 108 N. W. 259; Jackson v. Butler, 21 Tex. Civ. App. 379, 51 S. W. 1095; Buena Vista Co. v. McCandlish, 92 Va. 297, 23 S. E. 781.

41 Moreau v. Chauvin, 8 Rob. (La.) 157.

BLACK RESC.-33

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42

furnish the bond is ground for rescission. This rule has also been applied in the case of failure to comply with that part of a contract which obliges the vendor of land to furnish an abstract of title,43 to obtain an extension of an existing mortgage on the premises, or to secure the removal of a lien.45 So, where the plaintiff agreed to donate certain land to defendants on condition that they should conduct a summer school at the place where the land lay, for a period of three years, and also, within that time, erect and pay for all such buildings as should be needed for the purpose, and they complied with the contract so far as to conduct the school, but erected no buildings, the school being carried on in buildings belonging to other parties, it was held that the plaintiff was entitled to a decree annulling the contract. So an agreement to instruct the plaintiff in the science and art of aviation is an indivisible contract, such that, on defendant's failure to give or complete instruction as to the construction of the machine, the plaintiff may rescind.47

46

But it is also part of this rule that a contract may not be rescinded on account of a default or failure of performance in respect to a matter which is merely technical, or which is insignificant or of minor importance as respects the main objects of the contract.48 For instance, a land

42 Pratt v. Paris Gaslight & Coke Co., 155 Ill. 531, 40 N. E. 1032; Loveland v. Steenerson, 99 Minn. 14, 108 N. W. 831; Loveland v. Beumer, 102 Minn. 1, 112 N. W. 864. But where the seller was willing to furnish the bond, the buyer, in an action to rescind the contract for delay in delivery, cannot urge as a ground for rescission that the bond was not in fact given. American Case & Register Co. v. Griswold, 68 Misc. Rep. 379, 125 N. Y. Supp. 4. And where a contract of sale of goods provides that the seller shall furnish a bond, the giving of an objectionable bond is not a ground for rescission, where, promptly on notice, a sufficient bond is supplied pursuant to the contract. Standard Mfg. Co. v. Slaughter, 122 Ill. App. 479. 43 Reynolds v. Lynch, 98 Minn. 58, 107 N. W. 145.

44 Schiff v. Tamor, 104 App. Div. 42, 93 N. Y. Supp. 853.

45 Moreau v. Chauvin, 8 Rob. (La.) 157.

46 Seven Mile Beach Co. v. Dolley, 71 N. J. Eq. 735, 65 Atl. 991, 66 Atl. 191.

47 Jansen v. Schneider, 78 Misc. Rep. 48, 138 N. Y. Supp. 144. 48 Anglo-Wyoming Oil Fields v. Miller, 117 Ill. App. 552 (affirmed, 216 Ill. 272, 74 N. E. 821); Barr v. Little, 54 Neb. 556, 74 N. W. 850; St. Regis Paper Co. v. Santa Clara Lumber Co., 186 N. Y. 89, 78

company sold lots on the condition that it would secure the location of a manufacturing plant on certain land, the con tract of purchase also providing that the land company should pay the manufacturing company a certain bonus, and should sell a certain number of lots, from the proceeds of which the bonus was to be raised. The location of the plant was secured as agreed, and it was held that the fact that the requisite number of lots was not sold, or the full amount of the bonus paid, was not sufficient ground for the rescission of the contract, as these matters were merely minor details conducing to the location of the plant. So, where the owners of a tract of land, who were also interested in a tannery, entered into a contract with the owners of the tannery for the sale of all the bark growing on the tract of land, the bark to be used in the tannery in carrying on the same, to be paid for before removal from the land and to remain the property of the vendors until paid for, it was held that the provision requiring the use of the bark in the tannery was not such a condition or limitation as would entitle the vendors to insist upon the use of the bark within the tannery alone, and to rescind the contract in the event of its destruction by fire.50 Again, an owner of land contracted in writing to sell the same to the plaintiff, and thereafter, under certain provisions of the contract, he sent a notice to the plaintiff purporting to cancel the contract for certain alleged defaults. The grounds alleged were that the plaintiff did not personally cultivate the land, and had omitted individually to turn over one-half of the crop to the seller, but there was no evidence that the land was not cultivated, or that half of the crop was not turned over as agreed; and it was held that such grounds of forfeiture were not sufficient. So also, there is no ground for rescission where a partial failure of performance occurs through mere inadvertence,52 or through a mistake which

N. E. 701; Hunt v. American Radiator Co., 2 App. Div. 34, 37 N. Y. Supp. 576; Hill v. Still, 19 Tex. 76; Hoffman v. King, 70 Wis. 372, 36 N. W. 25.

49 Lewis v. Brookdale Land Co., 124 Mo. 672, 28 S. W. 324.

50 Lyon v. Hersey, 103 N. Y. 264, 8 N. E. 518.

51 Bucholz v. Leadbetter, 11 N. D. 473, 92 N. W. 830.

62 Kenner v. Allen, McGloin (La.) 214.

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the other party is willing and able to correct at his own expense. This rule was applied in a case where the seller of a chattel asked for a chattel mortgage to secure payment, but agreed instead to take the buyer's note at four months, and by mistake the blank note which was sent to the buyer for his signature contained a chattel-mortgage clause.54

Nor can rescission be demanded for a partial failure of performance, where the contract itself provides for the compensation or damages to be allowed in such a case, and fixes the method of ascertaining the amount thereof.55 But in a case in Alabama, where the defendant agreed to transact certain business for the plaintiff and to be accountable for defaults in performance, it was held that the stipulation to be responsible for defective performance was merely an agreement that damages for such omissions might be set off against the defendant's compensation, and did not contemplate that frequent failures to perform should not constitute a breach of the contract, but should be compensated by deductions from the consideration, and hence that frequently recurring omissions on the part of the defendant would entitle the plaintiff to rescind the contract.56

Again, it is a rule that "when a contract has been partially executed, and one of the parties has derived substantial benefits or has imposed upon the other material losses through the latter's partial performance of the agreement, then the first party cannot rescind the contract on account of the failure of the second party to complete his performance, but the agreement must stand, the first party must perform his part of it, and his only remedy for the failure of the second party to completely perform is compensation in damages for that breach." 57 Thus, where the purchaser of a set of books, after part had been delivered and his pay

58 Miller v. Benjamin, 142 N. Y. 613, 37 N. E. 631.

54 Embree-McLean Carriage Co. v. Lusk, 11 Tex. Civ. App. 493, 33 S. W. 154.

55 Gibbs v. School District of Borough of Girardville, 195 Pa. 396, 46 Atl. 91.

56 Davis v. Wade, 4 Ala. 208.

57 Kauffman v. Raeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; In re Morgantown Tin Plate Co. (D. C.) 184 Fed. 109; Burge v. Cedar Rapids & M. R. Co., 32 Iowa, 101.

ments were in default, refused to make payments because of the non-delivery of the remainder, and offered to waive the payments made and return the books received, it was held that the seller had a right to refuse to accept a return." But where the vendee in a land contract is in default, and has trifled or shown backwardness, and his default is gross, and the circumstances or value of the property have materially changed, a rescission ought to be decreed.59

58

60

A different rule prevails where the contract embraces the sale and delivery of several distinct articles, or the performance of several distinct acts, and is divisible, with nothing to show that complete performance of the whole is essential to the object or purpose of the contract. Here a party is not ordinarily allowed to rescind for failure of performance as to one of the several things embraced in the contract. Thus, where a stipulation for support and maintenance constituted but a part of the consideration for a deed of land, a partial failure to perform that stipulation should not necessarily operate to rescind the contract, but should rather lead to the enforcement of the executory part, if it can be done so as substantially to obtain the objects of the contract.1 But if a contract has been partially performed, and the other party accepts such part performance and settles and pays for it, this may be considered as rescinding the contract as to the future or unexecuted part of it.62 On this principle, where the plaintiff had agreed to purchase a piano, and to pay a part of the price in cash and the balance in advertising, it was held that he could not

58 Rodgers v. Wise, 106 Ark. 310, 153 S. W. 253, 43 L. R. A. (N. S.) 1009.

59 Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677.

60 Hansen v. Baltimore Packing & Cold-Storage Co. (C. C.) 86 Fed. 832; Power v. Brown, 25 Ohio Cir. Ct. R. 420; Luce v. New Orange Industrial Ass'n, 68 N. J. Law, 31, 52 Atl. 306; Meyer v. Martin (Tex. Civ. App.) 50 S. W. 470; Burge v. Cedar Rapids & M. R. Co., 32 Iowa, 101. But see Gayle v. Troutman, 31 Ky. Law Rep. 718, 103 S. W. 342.

61 Keltner v. Keltner, 6 B. Mon. (Ky.) 40.

62 Hopkins v. Sickles, Wright (Ohio) 376; Barber v. Lyon, 8 Blackf. (Ind.) 215. Compare Peck-Williamson Heating & Ventilating Co. v. Board of Education, 6 Okl. 279, 50 Pac. 236.