érill, 9 B & Cr. 387; Hoare v. Rennie 5 H: & Norm. 19; Brad- ford v. Williams, L. R. 7 Exch. 261; Coddington Palestogo L. R. 2 Exch. 193. It has not been adopted in this country. Smith v. Lewis, 40 Ind. 98; McMillan v. Vanderslip; 12 John 165; Catlin v. Tobias, 26 N. Y. 217; Shinn v. Bodine; 60 Pa St. 182; Raybold v. Williams, 30 Pa. St. 268; Bradley v. King, 44 Ill. 339. When a time is fixed for delivery, a rescission is always allowed upon failure to deliver, and no intention to vary this can be drawn from the agreement for successive shipments of the one subject of sale. If the contract still remains one, though divisible in performance, there is no reason why this right of rescission should not be exercised.
Partial performance by the vendor. does not prevent the vendee from rescinding if the contract furnishes an exact measure of compensation for the benefit received. Chitty on Cont. 1094; Hill v. Crew, 1 Metc. 268-72; Haines v. Tucker, 50 N. H. 309; Dwinel v. Harvard, 30 Me. 258; Miner v. Bradley, 22 Pick. 459; Bradley v. King, 44 Ill. 339; Catlin v. Tobias, 26 N. Y. 217; Sharp v. The Turnpike, 3 Pa. St
BUTLER, D. J., (orally.) To justify an allowance of the motion, we must be convinced that our ruling at the trial war wrong. We are not so convinced. The motion must there- fore, be dismissed. For myself, however, I may say that T regard the point as involved in serious doubt,-not so much when considered on general principles, as when viewed in the light of modern decisions. The right to rescind a contract for non-performance, is a remedy as old as the law of con- tract itself. Where the contract is entire,-indivisible,—the right is unquestioned. The undertakings on the one side, and on the other, are dependent, and performance by one party cannot be enforced by the other, without performance, or a tender of performance, on his own part. In the case before us the contract is "severable.” But to say it is "severable," does not advance the plaintiffs' argument. A "severable" contract, as the language imports, is a contract liable simply to be severed. In its origin, and till severed, it is entire-a single bargain, or transaction. The doctrine of severable- ness, (if I may be allowed to coin a word,) in contracts, is an invention of the courts, in the interest of justice, designed to
