bark, at the price of $18 a ton, to be delivered at the rate of one car load per week until the whole should have been delivered. Under this contract five car-loads were actually delivered. This was stored by Reilly in a loft over his tannery with other bark. It was all paid for at the contract price by July 3d, 1882, but none of it was used until July 15th. Reilly claims that it was then found to be musty, lumpy, and unfit for the purpose for which it had been bought; and shortly after Reilly notified Blackburn not to send any more-first by mail, alleging that he was overcrowded, and shortly afterwards in a personal interview, alleging its unmerchantable condition.

In January, 1883, and before the expiration of the year within which the bark was to have been delivered, Blackburn brought suit, setting forth the above contract and the breach of it. The defendant pleaded the general issue. Before trial, however, the parties came to an understanding, and made an agreement in writing, dated March 27th, 1883, which was delivered on April 4th, 1883. By its terms it was stipulated that the contract for the breach of which suit had been brought should be completed by the delivery by Blackburn of a sufficient number of car loads of bark to make, with what had already been delivered, 52 car loads, at the price of $17 per ton, payable on delivery of each car load. This new agreement then went on to provide as follows: "(4) One car load only shall be delivered during each week after shipments shall begin, and said shipments shall begin on the first day of April next, or within ten days thereafter." "(6) This suit shall not be discontinued or non prossed until the final completion of this contract. The plaintiff shall then discontinue it without costs. But in case of a breach of this contract by said Reilly, the plaintiff may proceed in this suit by requiring the defendant to plead, and the suit shall proceed thereon to trial, and the damages to be recovered shall be measured by the original contract sued on. Said Reilly shall, on the execution hereof, pay the taxed costs of the plaintiff. It is understood that this suit is not settled unless the terms of this contract are faithfully carried out by said Reilly."

Blackburn did not deliver any bark within the 10 days stipulated, or subsequently. Reilly, on his part, tendered the costs on April 21st, and gave notice that he would not receive any bark under the contract because of the lapse of time. The tender was refused, and Blackburn insisted on proceeding in the original suit. Reilly

then pleaded puis darrein continuance, two additional pleas setting forth the new agreement, Blackburn's failure to deliver under it, and Reilly's tender of costs, to which Blackburn demurred, and judgment was given in favor of the demurrant. The case then went to trial on the general issue as originally pleaded; the damages claimed being damages for the breach of the first agreement. The defence interposed was that the delivery of five loads of unmerchantable bark justified the defendant in refusing to receive any more bark under the contract. This defence was overruled by the court, and the plaintiff had judgment. Exceptions being sealed for the defendant, he brought this writ of error.

Mr. Coult, for plaintiff.

Mr. Stevens, for defendant.

The opinion of the court was delivered by

DIXON, J.-The first question for decision on this writ of error is whether the pleas puis darrein continuance were good. They were pleaded in bar of the action, and a prime requisite of such pleas is that they shall allege facts which form a conclusive answer to the action, and entitle the defendant to a final judgment in the cause. 1 Chit. Pl. 525. The express terms of the contract relied on in these pleas show that nothing growing out of and dependent upon that agreement could have this broad effect in favor of the defendant. According to its provisions, the defendant was forthwith to pay the costs of this suit. In case he failed to comply with its stipulations, the suit was to proceed as if the contract had not been made; and if he fully performed it, the plaintiff was to discontinue the suit without costs. So that the effect upon the pending litigation which could result from circumstances the most favorable to the defendant was that the plaintiff could be compelled to discontinue it without costs. That is quite different from the judgment for defendant to be rendered upon a good plea in bar which would award costs to the defendant, and be conclusive in his favor upon all subsequent litigation involving the same issues. It is evident. that the effect which the parties intended to produce on the pending suit by force of this agreement could be properly secured only by motion, not by plea. The demurrer to these pleas was good.

The other question discussed on the argument was whether the defendant had the right to refuse to receive any more bark in case

he could satisfy the jury that the five loads of bark delivered were not equal in quality to the requirements of the contract. The contract provided that the plaintiff should deliver, and the defendant should receive, one car-load of bark weekly for a year at $18 a ton, payable on delivery. It belongs to a class of agreements sometimes called continuing contracts of sale, because they are to be completely performed, not by single acts of delivery and payment, but by a series of such acts at stated intervals. The rule to be applied in determining whether the express obligations of such contracts remain after one or more breaches by either party has been the subject of much discussion of late years, and has given rise to some contrariety of judicial opinion. We do not feel constrained by the phases of the present case to enter at any length upon the details of this discussion. In our opinion the rule established in England by the judgment of the House of Lords in Mersey Steel & Iron Co. v. Naylor, 9 App. Cas. 434, affirming the judgment of the Court of Appeals in s. c. 9 Q. B. Div. 648, is one which in ordinary contracts of this nature will work out results most conformable to reason and justice. The rule is that defaults by one party in making particular payments or deliveries will not release the other party from his duty to make the other deliveries or payments stipulated in the contract, unless the conduct of the party in default be such as to evince an intention to abandon the contract, or a design no longer to be bound by its terms. This rule leaves the party complaining of a breach to recover damages for his injury on the normal principle of compensation, without allowing him the abnormal advantage that might enure to him from an option to rescind the bargain. It also accords with the ancient doctrine laid down by Serjeant Williams in his notes to Pordage v. Cole, 1 Saund. 3206, that where a covenant (of the plaintiff) goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the contract on the part of the defendant without averring performance in the declaration. It of course is inapplicable where the parties have expressed their intention to make performance of a stipulation touching a part of the bargain a condition precedent to the continuing obligation of the contract; and peculiar cases might arise where the courts would infer such an intention from the nature and circumstances of the bargain itself, cases in which the courts would see that the partial

stipulation was so important, so went to the root of the matter (to use a phrase of BLACKBURN, J., in Poussard v. Spiers, 1 Q. B. Div. 410), as to make its performance a condition of the obligation to proceed in the contract.

The case in hand is one of ordinary character, and therefore the question under the rule is whether the circumstances would warrant an inference by the jury that the plaintiff purposed to abandon the contract, or no longer to be bound by its terms. This question is, we think, not doubtful. The plaintiff had delivered five car-loads, which had been accepted and paid for by the defendant without any intimation that they were not satisfactory; was ready to deliver the sixth when the defendant requested delay; and was prevented from further deliveries only by the peremptory refusal of the defendant to receive any more. Against this refusal the plaintiff protested, then proposed an arbitration, and threatened suit if the defendant should persist, and finally brought this action for damages. In the face of all this there is not a shadow of reason for saying that the plaintiff had abandoned or repudiated the contract. If the five deliveries of defective bark had been made against notice and remonstrance, it might have suggested the idea that the plaintiff meant to disregard his obligations; but by the defendant's acceptance of and payment for the bark without objection this ground for a possible inference of repudiation is wanting in the case. We regard it as incontestable that the deliveries were made in recognition of the binding force of the agreement. The defendant, therefore was not discharged. Cahen v. Platt, 69 N. Y. 348, was precisely like the case before us. The plaintiff had agreed to sell the defendant glass, to be delivered in instalments. He had made several deliveries, which had been accepted and paid for by the defendant. Subsequently the defendant complained of the quality, and refused to receive any more. The suit was for damages resulting from the refusal, and the plaintiff recovered. Scott v. Kittanning Coal Co., 89 Penn. St. 231, was also similar; but there the defendant contended that the conduct of the plaintiff in the delivery of the defective coal was fraudulent, yet the court held the defendant would not be thereby discharged.

There was no error in the ruling of the trial justice on this proffered defence. The judgment below should be affirmed.

Supreme Judicial Court of Massachusetts.

NORCROSS v. JAMES.

Covenants running with the land may be divided into two classes, viz., those annexed to the estate, such as the ancient warranty now represented by the usual covenants for title, and those which are attached to the land itself, such as rights of

common or easements.

Covenants of the latter class, in order to be enforceable against the assignees of the covenantor, must "touch and concern,' or "extend to the support of" the land conveyed.

A covenant in a deed for land containing a quarry that the grantor will not open or work or allow to be opened or worked, any quarry on a certain farm then owned by the grantor adjoining the land conveyed, is not such a covenant as may be enforced against the assigns of the grantor.

THIS was a bill in equity to restrain the defendants from the breach of a covenant in a deed from one Luke Kibbe, Jr., to William N. Flynt. The case was reported to the full bench of the Supreme Court on an agreed statement of facts, in which it appeared that one of the inducements of the purchase of the estate was the valuable quarry of marble it contained, and the covenant the deed contained restraining the quarrying of marble on the adjoining land. The plaintiff contended that the covenant was one that ran with the land, and, as such, was binding on the heirs and assigns of the covenantor, in favor of the heirs and assigns of the covenantee. The defendant contended that it was personal, and that it was also void, as being in restraint of trade. The material facts appear in the opinion.

James G. Dunning, for the plaintiff.

Charles L. Long, for the defendant.

The opinion of the court was delivered by

HOLMES, J.-One Kibbe conveyed to one Flynt a valuable quarry of six acres, bounded by other land of the grantor, with covenants as follows: "And I do for myself, my heirs, executors and administrators, covenant with the said Flynt, his heirs and assigns, that I am lawfully seised in fee of the afore-granted premises, that they are free of all incumbrances, that I will not open or work, or allow any person or persons to open or work, any quarry or quarries on my farm or premises in said Long Meadow." By mesne conveyance the plaintiffs have become pos