
    [No. 7,486.
    Department One.]
    FRANCIS VEERKAMP v. THE HULBURD CANNING AND DRYING CO.
    Contract for Sale of Vruit—Construction—Partial Delivery—Time of Payment.—The defendant agreed to take and pay for all the fruit raised by the plaintiff at a uniform rate per pound for all fruit raised and delivered at the works of the defendant. As the fruit ripened the plaintiff delivered and the defendant received it under the contract; but the latter refused to pay for the fruit until all was delivered; and thereupon the plaintiff declined to deliver any more, and sued for the value of that delivered.
    
      Held, that according to the true construction of the contract, as each lot was ■ delivered and accepted by the defendant, there became due and payable from it to the plaintiff the value thereof at the rate per pound fixed in the contract.
    Appeal from a judgment for the plaintiff in the Superior Court of El Dorado County.
    
      George G. Blanchard, for Appellant.
    This contract was entire. The criterion to determine whether a contract is entire or apportionable is found both in its language and subject-matter. (Moore v. Bonnet, 40 Cal. 251; Cox v. W. P. R. R. Co., 44 id. 18; Butler v. Butler, 33 Amer. R. 648, 705.) Full performance was a condition precedent to any payment. (Cunningham v. Jones, 20 N. Y. 486.) The fact that the price is calculated by a certain article or measure does not affect the entirety of the contract. (Story on Contracts, § 23; Gault v. Brown, 48 N. H. 183; 2 Amer. 210.) It is even held that in the case of simdry articles purchased at the same time, though for a separate price for each article, the contract is entire. (Brown on Stat. of Fraud, § 335; Baldy et al. v. Parker, 2 B. & C. 37; Elliott v. Thomas, 3 M. & W. 170; Gilman et al. v. Hill, 36 N. H. 311; Norris v. Harris, 15 Cal. 226.) If this contract is entire, plaintiff can not recover upon a partial performance of the same, where there has been no default of defendant. (Galvin v. Prentice, 45 N. Y. 162; Haskell v. McHenry, 4 Cal. 411.) He can only relieve himself on the ground of a clear refusal of the defendant to receive, or becoming disabled to perform his part of the contract. (Smoot’s Case 
      15 Wallace, U. S., 36.) It is shown that plaintiff made no objection to delivering the fruit on the ground; that defendant was unable to pay for the same; and further, that defendant demanded of plaintiff that he should continue to deliver the fruit. Plaintiff alone was in default and can not recover. (Champlin v. Rowley, 18 Wend. 187; Brown v. Weber, 38 N. Y. 187; Hutchinson v. Wetmore, 2 Cal. 310.)
    
      C. J. Carpenter, for Respondent.
    The contract was separable ex vi termini, and by nature of the subject-matter.
   Ross, J.:

The parties to this suit contracted with each other in writing as follows: “ The said company engage to take and pay for all the fruit raised by the said Francis Yeerkamp at the uniform rate of five eighths (-§) of a cent per pound for all fruit raised and delivered at the works of the above company, in Upper Placerville (excepting Mission grapes), and to furnish boxes for picking and hauling the fruit. The said Francis Yeerkamp, on his part, engages to deliver the fruit in good condition, and when in suitable ripeness, and will sell no fruit to other parties, excepting one load early.”

The parties could not very well have made their contract more indefinite. The fruit referred to in the written agreement was such as was then growing on land of the plaintiff. As the fruit ripened, the plaintiff delivered and the defendant received it under the contract. After a part had been thus delivered and accepted, the plaintiff demanded of defendant payment for that delivered at the agreed rate, but the defendant refused to make such payment until the plaintiff should first deliver all of the fruit referred to. Thereupon plaintiff declined to deliver to defendant any more, and sued for the value of that delivered and accepted. The defendant resists the.action on the ground that the delivery of all the fruit referred to in the contract was a condition precedent to the payment for any. We do not think that the proper construction of the agreement between the parties. The contract must be construed with reference to the subject-matter of it. It was executory in its nature. It could not be known in advance how much of any particular kind of fruit there would be. In the nature of things it ripened at different times, and had to be delivered at different times. The contract fixed the rate per pound at which the defendant was to pay for it, and, in our opinion, according to its true construction, as each lot was delivered to and accepted by defendant there became due and payable from it to the plaintiff the value thereof at the rate per pound fixed in the contract.

Judgment affirmed.

McKinstry, J., and McKee, J., concurred.  