The defendant contends that the refusal of the plaintiffs to pay for the timber which was delivered previously to the 1st of April 1858, and which has been the subject of a former action by the present defendant against the present plaintiffs, excused him from delivering the remainder of the timber and constitutes a good defence to this suit. The legal principle which the defendant would apply to this case may be entirely correct,j when properly applied. It might be held in a case where the vendor had contracted with the vendee to deliver a certain amount of timber or other commodity, to.be delivered at certain specified times, and payment was to be made therefor on each delivery, and the vendee had made an unqualified refusal to pay anything more — not merely an omission to pay for a particular delivery, but in language broad enough to be treated as a general refusal to make any further payments — that such a refusal to make payment discharged the other party from liability to damages for neglecting to make further delivery as stipulated in the contract. But such are not the facts of the present case. The contract between these parties in reference to a delivery of *495timber ceased to be an entire one upon the making of the supplementary agreement of the 17th of February 1858, leaving the purchasers liable for all that portion embraced in the recovery in the former action, and in reference to which payment was due in six months after its delivery, and making also a stipulation for extending the time of delivery of the remainder of the timbei one year.

It is true that the present plaintiffs denied their liability to make payment for any portion of the timber until the whole was delivered, treating the whole delivery as one entire contract. In that they were wrong, and this court held them liable for the timber first delivered, at the expiration of six months after its delivery. But we think that act was not under the circumstances a repudiation of the contract for future delivery, or to operate to excuse the defendant from the performance of his further contract to deliver timber by the 1st of April 1859. The contract had been substantially divided, the new stipulation postponing both delivery and payment, as to all embraced within it, an entire year beyond the time applicable in both these respects to the delivery of the first parcel. In regard to each portion, a distinct liability attached to the parties, and this was not discharged by the plaintiffs’ refusal to pay for the first portion, under the circumstances stated. The case of Withers v. Reynolds, 2 B. & Ad. 882, is much relied upon on the part of the defendant. That case, upon a careful scrutiny, will be found to have been put upon the ground of something more than a mere refusal to pay for articles already delivered. It was considered by the court as a prospective refusal, and applicable to articles yet to be deliv ered upon the contract. But in the present case the plaintiffs did not, in their refusal to pay for the first parcel of timber upon the ground that the day of payment therefor had not arrived, deny their liability, or affirm their purpose not to pay promptly and fulfil to the letter their promise to pay for the timber to be delivered under the extended contract. As to that payment, they took the same view as the other party. Both held that for the timber yet to be delivered, payment was to be made in six .months after its delivery. The denial of payment for the timber delivered prior *496to the 1st of April 1858, was a denial based upon the legal effect of the contract, the vendee alleging that it postponed the entire payment. This refusal to pay for the timber that had been delivered on the 1st October 1858, did not operate to discharge the other party from his promise to deliver timber on the 1st of April 1859. The plaintiffs are therefore entitled to maintain their action, and the case is to be sent to a jury to assess the damages.