Tipton v. Feitner
Court of Appeals of New York, 1859.
20 N.Y. 423.


Tipton agreed to sell Feitner 88 dressed hogs, as well some that were alive. The prices were a little different for each. The dressed hogs were delivered, however, the live ones were not. Feitner never paid for the ones he received, so Tipton sued.


The lower courts ruled in favor of Tipton, but deducted from his award the damages Feitner sustained by not getting the live hogs.


Was delivery of both the dressed hogs and the live hogs required before any payment was to be received?


No. Affirmed.


Doctrine of divisible contracts: If a contract involves multiple promises on each side, and it can be concluded that pairs of corresponding promises were consideration for each other, those corresponding promises are considered “divisible” from the other corresponding promises in the contract.

  • In that situation, a breach of a promise only affects the duty to perform the corresponding promise. In other words, the non-breaching party’s duty to perform a promise that does not correspond to the promise that was breached is not affected (and must still be performed).


Here, It was reasonable to assume that the parties agreed to pay for each parcel whenever it was received. That way, neither would have to trust each other.

  • Think of the agreement as basically two separate Ks, where a material breach of A and C only suspends performance of B and D, doesn’t terminate it.
  • Q: What should the test be to determine whether it applies? I.e. K & G v. this case.
  • Useful test to determine divisibility is “whether, had the parties thought of it, they would be willing to exchange the part performance irrespective of what transpired subsequently.” (They were separate deals.)