DELIVERY FROM TIME TO TIME. 491 



in a fortnight ; and the said J. W. agrees to pay the said J. R. 33s. 

 per load, for each load so delivered from this day, till the 24th June, 

 1830, according to the terms of this agreement." 



When the straw had been supplied for some time, the defendant asked 

 for payment, and received 11 gs. payment for all the straw, except the 

 last load, as the plaintiff said he should always keep one load in hand. 

 The defendant said he should send no more straw unless it was paid for 

 on delivery, and no more was accordingly sent ; and it was submitted on 

 his behalf at the trial that there must be a nonsuit, as the plaintiff on 

 his own showing had not performed his own part of the contract, which 

 was in effect to pay for each load on delivery. It was held by the Court 

 of Queen's Bench that according to the true effect of the agreement each 

 load was to be paid for on delivery, and that on the plaintiff's refusal to 

 pay for them, the defendant was not bound to send any more, and the 

 Court directed a nonsuit. 



Pafteson J. said, " If the plaintiff had merely failed to pay for any 

 particular load, that of itself might not have been an excuse to the de- 

 fendant 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." Taiinion J. 

 expressly founded his decision upon the special wording of the contract 

 *' for each load, &c.," which he considered to import that each load shall 

 be paid for on delivery. On this Mr. Smith remarks in his " Leading 

 Cases," vol. IL, p. 19, that if this case were decided on any other ground, 

 it vrould be contrary to the opinion expressed by Parke J. in Oxendale 

 V. Wetherall, viz., that " Where there is an entire co7itract to deliver alarge 

 quantitij of goods, consisting of distinct parcels, within a special time, and 

 the seller delivers part, he cannot hefore the expiration of that time iring 

 cm action to recover the price of that part delivered, because the purchaser 

 may, if the vendor fail to complete his contract, return the part delivered. 

 But if he retain the part delivered after the seller has failed in perform- 

 ing his contract, the latter may recover the value of goods which he has 

 so delivered." Here the plaintiff had delivered to the defendant 130 

 bushels of wheat, and the question on the evidence was, whether the 

 contract was for 250 bushels, or so much as the plaintiff could spare. 

 The jury found that it was an entire contract, and Bayley J. ruled that 

 notwithstanding the non-performance of part of the contract by the 

 vendor, if the purchaser retains the part which has been delivered after 

 the time for completing the delivery has expired, he is liable for the price 

 of that part. The Court of Queen's Bench refused a rule for a nonsuit, 

 and Lord Tenter den C.J. observed that, " If the rule contended for were 



