rate invoice was to be made on or before 30, that the defendant would have if sued by days from its date. The terms, "3%-30 the assignor. Clearly, the statute embraces days," are in effect so construed by the trial all defenses growing out of the transaction, court, presumably on evidence before it to and would include such a claim as the deshow that such was its meaning as a trade fendant here relies upon in offset. The same term. There is no exception to the "finding" principle applies as in a suit on an overdue as a finding of fact, and the parties appear to note in the name of the transferee, as to have been content with the conclusion reached which see Armstrong v. Noble, 55 Vt. 428; by the court in that respect. Haley v. Congdon, 56 Vt. 65.

[1] The claim is made by the plaintiff that the breach of contract, if any, for which the defendant is seeking to recover damages, was committed by the copartnership, and so the claim in offset was properly disallowed against the plaintiff. It is argued, that in the absence of any agreement between the parties to the suit respecting liability, the assignment of the rights of the copartners under the contract did not make the plaintiff corporation liable to the defendant for breaches committed before the assignment was made. This claim is untenable. If, as the plaintiff assumes, the alleged breach was by the copartnership, it does not follow that the resulting damages could not be offset in this action. The plaintiff relies upon Smith v. Kellogg et al., 46 Vt. 560, wherein it is held that the action for a breach of a mere personal contract cannot be brought against the party to whom the contracting party has assigned his interest, but must be brought against the original contracting party. The contract in that case was a lease by Smith of a drug store and personal property, in cluding a soda fountain, to Kellogg and one Lowry. During the term the lessees disposed of the fountain, which was a breach of the lease, and afterwards Lowry assigned his interest in the lease to a third party, who was made defendant with Kellogg in the suit sub-wise, it would operate as a discharge, and sequently brought by Smith to recover for the breach. It was held that Lowry, and not his assignee, should have been made a party de fendant with Kellogg. This is wholly unlike the case at bar. Here the plaintiff corporation by assignment took over the entire business of the copartnership, both as to as- [3] The fact that goods are to be paid for sets and liabilities, including all outstand-in installments, while making the contract ing contracts. The former partners are the apportionable as to payments, does not necreal owners of the corporation, the only oth- essarily make it severable, rather than entire, er stockholder being a clerk in their employ. for other purposes. A contract may be single As a legal entity, the corporation stepped in- in some of its aspects, and divisible or apto the shoes of the copartnership, but the portionable in others, particularly with refcourse of business between the parties was erence to remedies for its breach. Ordinariinterrupted. We do not find it necessary to ly, if it is a severable contract in other asconsider whether in the circumstances the pects, the failure of the buyer to pay for one plaintiff would be estopped, for the Practice installment does not entitle the seller to Act (G. L. 1789-1805), by virtue of which the breach another severable part of the contract. plaintiff would be enabled to prosecute the But the fact that the contract is divisible or claim as assignee in its own name, carries apportionable as to payments does not prethe provision that the authority thus con- vent its being single, so that the default of ferred shall not affect the defenses which the the purchaser in making payments will redebtor might have made if the action had lease the seller from the balance of the conbeen brought by the assignor. G. L. 1800. tract at his election. In short, a contract to This amounts to a provision that in a suit by deliver goods in installments to be paid for an assignee all defenses shall be available in installments may be entire in its general

[2] The defendant contends that there was no specific finding that it broke the contract. However, that such is the necessary inference from the facts found is not denied-in fact is inferentially admitted. The position taken is that refusal to pay for the paper delivered under the contract, such refusal not evincing a purpose on its part to renounce the contract, did not entitle the plaintiff to rescind it. This brings us to the principal question in the case, which is whether the defendant's failure to pay as the installments came due was such a breach of the contract as justified the plaintiff's refusal to make further deliveries. This depends upon the character of the contract, whether entire or severable, and the nature of the defendant's breach, whether it did or did not go to the essence of the contract. It is not every breach of a contract that defeats recovery or relieves the other party from performance, but only such as is of the essence of the contract. So it is that failure of either party to perform an essential term of a contract in character entire gives the other party the right to rescind. Assuming that the contract in question was entire, if the time of payment was not of its essence, the breach, which was compensable in damages, would not defeat the defendant's recovery; but, if other

justify the plaintiff in treating the contract as ended. Rioux v. Ryegate Brick Co., 72 Vt. 148, 155, 47 Atl. 406; Thompson-Starrett Co. v. Ellis Granite Co., 86 Vt. 282, 289, 84 Atl. 1017; Tichnor Bros. v. Evans, 92 Vt. 278, 102 Atl. 1031, L. R. A. 1918C, 1025.

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features, and yet as to time of delivery and payment it may partake of a severable character. Note, 2 Am. Law Rep. 665-668, where the cases are collected.

contract, but which one first failed to do what he was bound to do; that the defendant's notice that the contract was at an end constituted a breach, unless the plaintiff was already in default by reason of his failure to advance his notes; and that whether that constituted a breach depended on whether the defendant had shipped enough slate to cover the previous advancements, or had been excused therefrom by waiver of the plaintiff. On review, the charge in this respect was upheld.

[5, 6] The defendant claims that its refusal to pay the overdue installments, coupled as it was with an offer to pay when promised deliveries were made, did not entitle the plaintiff to rescind the contract, as such a refusal would not indicate a purpose on its part to renounce the contract. This claim is not without support. While the earlier English decisions were in accord with the rule generally adopted in this country, the later cases, notably Mersey Steel, etc., Co. v. Naylor, 92 B. Div. 648, 9 App. Cas. 434, much re

rule for which it contends. This so-called later English rule has been followed by some of the courts in this country, while in states that have adopted the Uniform Sales Act it is effective by statute. See 24 R. C. L. 277 et seq. Whatever can be said in favor of this rule, it is undoubtedly a departure from the common law; and, being a rule of contract, a change from the common law, if desirable, must be by statute. 15 C. J. 947, sec. 342.

[4] The general rule deducible from the cases and supported by the undoubted weight of authority in this country is that in a contract for the sale of commodities to be delivered in installments and the price to be paid in corresponding installments, either upon delivery or at fixed periods, default of the purchaser in payment of any installment of the price, not justified by the circumstances nor waived by the seller, justifies the latter in rescinding the unexecuted portion of the contract, and refusing to make further deliveries. 1 Black on Resc. & Con. § 215; 24 R. C. L. 279. In such cases having reference to the natural and evident intention of the parties, time of payment is deemed to be an essential element of the contract. Many of the decisions following this rule in other jurisdictions will be found in notes to the works just cited, and in 2 Am. Law Rep. 669; Ann. Cas. 1913D, 1021. Among the later cas-lied upon by the defendant, have adopted the es are Purcell Co. v. Sage, 200 Ill. 342, 65 N. E. 723; Ohio Valley Buggy Co. v. Anderson Forging Co., 168 Ind. 593, 81 N. E. 574, 11 Ann. Cas. 1045; Dudley v. Wye, 230 Mass. 350, 119 N. E. 790; Samuels v. Miner Choc. Co. (Mass.) 126 N. E. 771; Enterprise Mfg. Co. v. Oppenheim, 114 Md. 368, 79 Atl. 1007, 38 L. R. A. (N. S.) 548; Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 88 N. E. 24, 21 L. R. A. (N. S.) 864; Strother v. McMullen Lum. Co., 200 Mo. 647, 98 S. [7] The defendant relies upon Booth v. TyW. 34; Henderson Lum. Co. v. Stillwell & son, 15 Vt. 515, Davenport v. Hubbard, 46 Co., 130 Mich. 124, 89 N. W. 718; Ambler Vt. 200, 14 Am. Rep. 620, and McGowan v. v. Sinaiks, 168 Wis. 286, 170 N. W. 270; Griffin, 69 Vt. 168, 37 Atl. 298. However, Southern Coal & Coke Co. v. Bowling Green these cases do not support its claim, and are Coal Co., 161 Ky. 477, 170 S. W. 1185; Cali- not in conflict with the general rule stated fornia Sugar, etc., Agency v. Penoyar, 167 above. In each the question was whether Cal. 274, 139 Pac. 671. The rule finds sup- partial nonperformance on the part of the port in our own decisions. Fletcher v. Cole, plaintiff would wholly defeat his recovery. 23 Vt. 114; Preble v. Bottom, 27 Vt. 249; It was held that, although the contract was Amsden v. Atwood, 68 Vt. 322, 35 Atl. 311; in one sense entire, yet, if it did not contain Emack v. Hughes, 74 Vt. 382, 52 Atl. 1061. a condition of full performance precedent to The latter case is perhaps the most in point. any right to claim pay, and was of a nature The plaintiff sued for damages for breach of capable of just apportionment, the proma contract to deliver a certain quantity of ises would be considered independent and apslate each month on orders to be sent to the portionable, and a recovery for part perdefendant. He had agreed to send his notes formance could be had, subject to the deabout the 15th of each month to cover ship- duction of whatever damages the other party ments of the succeeding month. The plain-entitled to claim full performance may have tiff failed to send the notes on the 15th of a sustained. The rule of these cases applies certain month, and one week later the de- when a party, though himself in fault, is fendant notified him that for that reason the suing to recover compensation for services contract was at an end. The question was as rendered under a contract when his adverto which party broke the contract. The sary is in a position to claim full performplaintiff insisted that the defendant was in ance. It does not apply when, as here, a no position to complain, having failed to party is seeking to recover damages for the ship slate to cover notes already up, a claim nonperformance of a contract which, through which his evidence tended to support. The his own fault, he is not entitled to have trial court instructed the jury that it was performed.

not what the parties had demanded of each [8,9] Under the contract now being conother that was to determine who broke the sidered, and in the circumstances disclosed

order or its modifications, though such is the fair inference to be drawn therefrom.

by the findings, the defendant had no right to withhold payment to force further deliveries. Ginz v. Axelrod, 235 Mass. 143, 126 [10, 11] The plaintiff contends that the DeN. E. 359; Jensen v. Goss, 39 Cal. App. 427, cember order did not ripen into a contract, 179 Pac. 225; Armsby Co. v. Gray's Harbor since it was not accepted by the copartnerCom. Co., 62 Or. 173, 123 Pac. 32; Harris ship. The court found, in so far as it was Lum. Co. v. Wheeler Lum. Co., 88 Ark. 491, a matter of fact, that the plaintiff's as115 S. W. 168. On the other hand, the de- signors accepted the order of December 20 as fendant's failure to pay on demand, the pay- modified by the correspondence, and that the ments being overdue, gave the plaintiff the parties had a right to and did understand right to insist that they should be made as that a contract existed between them for a condition precedent to further deliveries. the sale and delivery of five tons of Glassine National Contracting Co. v. Vulcanite Port- paper according to the modified specificaland Cement Co., 192 Mass. 247, 78 N. E. 414. tions. It is insisted that the finding of an This being so, the plaintiff was not in de acceptance as a matter of fact should be disfault, and its refusal to perform further was regarded, the claim being that, as the negonot a breach of the contract entitling the tiations respecting this order were wholly defendant to damages. The trial court did in the correspondence between the parties, not err in disallowing the defendant's claim the question of acceptance is a matter of in offset under the September contract. construction, and not a question of fact. The The claim in offset for the breach of the acceptance of a proposal need not be expressDecember order presents additional and in ed to ripen into a contract, but may be compart entirely different questions. The find- municated by conduct. Portter v. Evert's ings state that all the evidence as to the Estate, 81 Vt. 517, 71 Atl. 722. In the abmaking of the contract is to be found in the sence of an express acceptance, the undercorrespondence between the parties which standing of the parties is to be implied from is referred to and made part of the findings. the correspondence and the conduct of the The letters relating to this matter are many plaintiff's assignors as evidenced thereby; in number, and cover a period from Novem- hence it is not a pure question of law to ber 17, 1915, until some time after May 1, be determined from a construction of the 1916. It is not expedient, nor necessary, to letters, but was a mixed question of law and quote from the correspondence in detail. It fact. Plimpton v. Gleason, 57 Vt. 604. We is sufficient for present purposes to say that are therefore bound to give force to the findthe order now under consideration was placing as to acceptance. Indeed we do see how ed with the plaintiff's assignors at their sug- the court could have well reached any othgestion. In answer to the defendant's re- er conclusion when the whole correspondence quest for quotations, they wrote under date is considered. of December 17, 1915:

[12] As with the September order, so here, the plaintiff relies upon the claim that the disallowance should be sustained because the defendant's claim in offset is not maintainable against it as assignee of the copartnership. However, it is in error when it says that the court found that all the negotiations were had with the copartnership, and not with the plaintiff. All that is said in this regard is by way of a correction in supplemental findings, which is in effect that,

So far as now material the order of where any act is found or referred to as beDecember 20, 1915, was as follows:

"Referring to your letter of the 17th you may enter our order for ten tons of the X White Transparo Glassine, as per your sample, at price of 114¢ per lb., f. o. b. mill with Philadelphia less than carload rate of freight allowed. Terms 2% cash 10 days. Deliveries to be taken as we may specify during the year 1916."

Negotiations for the modification of the order followed, first, by changing the quantity to five tons and finally by specifying 21⁄2 tons in rolls 221⁄2 inches wide and a like amount in rolls either 16 or 48 inches wide. The letters from plaintiff's assignors to the defendant contain no express acceptance of the

ing done by or with the plaintiff before March, 1916, the findings should read “with the plaintiff's assignors." If the provision of the Practice Act already referred to does not apply, the findings, including the correspondence, clearly show that before the alleged breach the plaintiff had become individually obligated to the defendant. It took over all of the contracts of the copartnership by the assignment some time in March, 1916; and in letters written after March 31, 1916, the date most favorable to the plaintiff, it promised performance of the contract in question. Its liability for a breach, then, was not as assignee, but was direct and personal.

[13] The plaintiff suggests as a ground for

(111 A.)

affirming the judgment that there was a 83 Vt. 104, 74 Atl. 489. Manifestly, the findvariance between the declaration in offset ings support the allegations as to damages and the proof. The whole evidence is not to the extent at least that they are called in before us, and we have only to say whether question. No paper was delivered under the on the findings, which are not excepted to, December order. May 1, 1916, the plaintiff the court erred in disallowing this particu- positively refused to ship any more paper unlar claim in offset; in other words, whether til the overdue invoices were paid, claimthe findings support the appropriate count of ing that the defendant had broken the conthe declaration. Questions of variance can- tract by failing to meet its payments. The not be heard in this court when it does not court computed the defendant's damages as appear from the exceptions that the ques- of May 1, 1916, on the basis of the fair martion was raised and passed upon in the court ket value of the paper called for in the orbelow, nor that such variance is material der, and found that if the defendant was enand substantial, affecting the right of the titled to recover for breach of contract as matter. G. L. 2263. The inhibition of the to this order it would be entitled to recover statute applies as well where the point is $1,325 with interest from that date. This made to sustain the judgment below as where result was reached by taking the difference relied upon to secure a reversal. See between the contract price and the advanced Brown's Ex'r v. Dunn's Estate, 75 Vt. 264, market price of the paper as of May 1. Ap 55 Atl. 364. plied to the case in hand, this was the proper measure of damages, if the breach gave the defendant the right to consider the contract as terminated. Upon such a breach, a right of action would accrue to the defendant, and it could have but one recovery. Damages could be recovered for the nonperformance of the whole contract, the measure of which would be the value of the contract to the defendant at the time of the breach. Parker v. McKannon Bros. & Co., 76 Vt. 96, 56 Atl. 536. See, also, Emack v. Hughes, 74 Vt. 382, 390, 52 Atl. 1061, 24 R. C. L. 69.

of.

The further claim that there were no findings on which the court could have assessed the damages declared for does not avail to sustain the judgment. In one count the defendant alleged as to the matter of damages in substance that at a time prior to the alleged breach the price of the paper called for by the contract had advanced to 30 cents per pound, and had subsequently gone even higher; that because of the plaintiff's failure to deliver the paper as called for under the contract the defendant had been deprived of the opportunity to sell such paper in the ordinary course of its business at the prevailing market price, and therefore had been deprived of the profits which it ought to and would have made from the sale thereThe court states in the findings that it did not appear in evidence that the defendant purchased paper in the open market of the kind specified in the order to supply its customers, nor that it was obliged to and did pay an advanced price because of the failure of the plaintiff to fill either of the orders; that it did not appear in evidence that by reason of the plaintiff's failure to reliver Glassine paper under either of said orders the defendant was unable to fill orders of customers for such paper, and thereby deprived of any profits; that it appeared in evidence that there was a difference in price between paper in stock and that sold to be manufactured for future delivery; and that no evidence was introduced showing the different prices of stock Glassine paper subsequent to May 1, 1916.

[14] The rule is that a party is entitled to recover the loss of profits occasioned by the wrongful termination of a contract that he would have received by its performance; and it has been held that such damages are the direct and immediate consequence of the breach. Morey v. King, 49 Vt. 304; Gibson v. Wheldon, 82 Vt. 175, 72 Atl. 909. Such is the rule of damages applied in the cases cited by the plaintiff. Austin v. Langlois,

[15] So far we have considered the various reasons advanced by the plaintiff why the judgment should be affirmed independent of the question whether its refusal to make deliveries under the December order was a breach of the contract. In disallowing this claim for damages the court evidently adopted the plaintiff's view, either that there was but one contract embracing the two orders, or that the plaintiff was released from both contract by the defendant's refusal to make payments on account of the September order, unless paper ready for shipment, including some covered by the December order, was delivered. As to the former, it is claimed that the correspondence shows the two orders to have been but one contract; but there is no fair basis for such a claim. On the contrary, the correspondence shows unmistakably that the two orders constituted separate and independent contracts. The letters evidencing the contracts admit of no other construction. Being so, each, in respect of performance, stood alone, and must be performed irrespective of the conduct of the parties in regard to the other. Bowers Granite Co. v. Farrell & Co., 66 Vt. 314, 29 Atl. 491. The defendant could not withhold payment on account of the September order because of the plaintiff's neglect to perform under the December order. No more could the plaintiff justify a refusal to perform the latter contract because of the de

fendant's breach of the former. The defendant's breach, which terminated the first contract, did not extend to the other. It insisted to the last upon deliveries thereunder, coupled with a promise to pay if further deliveries were made. Bowers Granite Co. v. Farrell & Co., supra, is full authority for holding that the plaintiff would be answerable in damages to the defendant for a breach of the December contract.

agreement had been to deliver all of the paper at once. Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; Cleveland Rolling Mills v. Rhodes, 121 U. S. 255, 7 Sup. Ct. 882, 30 L. Ed. 920; Roach v. Lane, 226 Mass. 598, 116 N. E. 470; Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 88 N. E. 24, 21 L. R. A. (N. S.) 864; Seibert v. Dunn, 216 N. Y. 237, 110 N. E. 447; White v. Wolf, 185 Pa. 369, 39 Atl. 1011; Hoare v. Rennie, 5 H. & N. 19, 157 Eng. Reprint, 1083; Houck v. Miller, L. R. 70 B. Div. 92; 24 R. C. L. 282.

We hold that the trial court erred in disallowing the defendant's claim in offset on account of the December contract. The defendant is entitled on the findings to recover $1,325, with interest from May 1, 1916, aggregating $1,682.75. The plaintiff had judgment below for $570.71, which included in

[16] It is claimed that the refusal to deliver was conditioned upon payment by the defendant, and that it does not appear that the defendant subsequently demanded a delivery. As we have seen, the condition, so far as it related to deliveries under the December contract, was without right, and put the plaintiff in default. The contract was entire, though it contemplated deliveries by installments. The wrongful refusal to deliver any installment-here the first-terest to February 18, 1920, and so there would be a breach of the whole contract, and entitle the defendant to repudiate the whole and recover damages for the breach. The provision for delivery would not split up the contract into as many contracts as there were to be deliveries; but the defendant would have the same right to rescind the whole contract for refusal to deliver a single installment that it would have had if the

would be due it as of this date $595.44, to be set off against the sum due the defendant, leaving in arrear from the plaintiff $1,087.31, for which the defendant should have judgment.

Judgment reversed, and judgment for the defendant for $1,087.31, with costs in the court below. Let neither party take costs in this court.