Page:Federal Reporter, 1st Series, Volume 5.djvu/784

772 enable one who bas partially performed, and is entitled on such partial performance, to something from the other side, to sustain an action, in advance of complete performance, — as where goods are Bold to be delivered and paid for in par- çels, to enable the seller to recover for the parcels delivered, in advance of completing his undertaking. Bat this equitable doctrine should not be invoked by one who has failed to per- forai, for the purpose of defeating the other 's right to rescind, and thus to protect himself against the consequences of his own wrong. As against such a party the contract should be treated, and enforced, as entire. To say therefore that the contract is "severable," does not, I repeat, advance the argu- ment. To render the plaintiff's position logical, it is neces- sary to take a step forward, and hold that such a transac- tion, (it would not be accurate in this view to call it a con- tract,) constitutes several distinct, independent contracts. Then of course it foUows that a failure as respects one of several successive deliveries, afifords no right to rescind in regard to those yet to be made. And this step, after much apparent doubt and hesitation, the English courts have taken. It was the n,ecessary outgrowth of the decision in Simpson y.Crippen, which overruled Hçare v. Rennie, In our own country the cases are inharmonious, and the question unsettled. After a careful examination of -(nrhat has been said on the subject, I shall not be surprised if the courts here finally adopt the pres- ent English rule, and thus substitute compensation in dam- ages for the remedy by rescission, to the extent theredone. Lsay this, however, not because I thinkit wise to fidopt this rule, but because of jin apparent leaning in that direction. The question, however, as here presented, is properly for the supreme court, to which I hope it may be carried, and the rule thus besettled.

McKennan, C. J., (orally.) I concur in the foregoing decision. I am not satisfied that. the weight ,of authority in this country is preponderating; in favor of following the English rule. I have very great doubt as, to the justice of this rule and am not disposed to follow it. I am not willing to take this advanced step.