Lynch v. Culhane, 237 Mass. 172. But where the default is wilful there can be no recovery either on the contract or on a quantum meruit. Bowen v. Kimbell, 203 Mass. 364, 371. Mark v. Stuart-Howland Co. 226 Mass. 35, 43. Lynch v. Culhane, 237 Mass. 172. Smedley v. Walden, 246 Mass. 393, 400. Divito v. Uto, 253 Mass. 239, 243. Cobb v. Library Bureau, 268 Mass. 311, 316. Hub Construction Co. v. Dudley Wood Works Co. 274 Mass. 493. The plaintiff intentionally failed to fulfill the contract by breach of its substantial stipulations, especially in failing to furnish the Cabot quilt, Divito v. Uto, 253 Mass. 239; Cobb v. Library Bureau, 268 Mass. 311, and in matters which could not be overlooked as trivial, Mark v. Stuart-Howland Co. 226 Mass. 35; Lynch v. Culhane, 237 Mass. 172. The plaintiff, therefore, cannot enforce his lien either upon the contract or upon a quantum meruit.

Any breach by Uvalde of the distributorship agreement was unrelated to Zelinger's obligation to pay for the materials received and, although he may have a remedy by way of counterclaim, such breach is not available to Zelinger as a defense to the action on the account. Williams Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S.W.2d 500; Mark v. Stuart-Howland Co., 226 Mass. 35, 115 N.E. 42, 2 A.L.R. 678; Springfield Seed Co. v. Walt, 94 Mo.App. 76, 67 S.W. 938; 6 Williston on Contracts § 872 (3d Ed., 1962). See Brown v. Fraley, 222 Md. 480, 161 A.2d 128; Tichnor Bros. v. Evans, 92 Vt. 278, 102 A. 1031, L.R.A. 1918C, 1025.

Ample support in reason and authority exists for this conclusion. Carrig v. Gilbert-Varker Corp., 1943, 314 Mass. 351, 50 N.E.2d 59, 147 A.L.R. 927; Mark v. Stuart-Howland Co., 1917, 226 Mass. 35, 115 N.E. 42, 2 A.L.R. 678; 3 Williston, Contracts §§ 860 A, 861, 871. The judgment of the District Court is affirmed.

It is a distinct and substantive ground of defense which must be alleged in the answer if a defendant seeks to avail himself of it in order to defeat recovery on a contract. Mark v. Stuart-Howland Co., 226 Mass. 35, 115 N.E. 42, 2 A.L.R. 678. Under Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in pleading to a preceding pleading, a party is required to set forth affirmatively any matter constituting an avoidance or affirmative defense. A defense to a contract on the ground that it was obtained through fraud, is not the same as a defense which alleged that the contract was rescinded.

He cannot do both. Mark v. Stuart-Howland Co., 226 Mass. 35, 115 N.E. 42, 44, 2 A.L.R. 678; Gen. Laws of Mass. c. 106, § 58. The court there said:

Atwood v. Boston, 310 Mass. 70, 37 N.E.2d 131. Even if one were to take the position that the contract here was so deficient as to be incapable of construction by conduct, cf. Marcelle, Inc., v. Sol. S. Marcus Co., 274 Mass. 469, 175 N.E. 83, 74 A.L.R. 1012, that principle would not avail where there were completed acts of the parties. Mark v. Stuart-Howland Co., 226 Mass. 35, 115 N.E. 42, 2 A.L.R. 678. Acceptance of a stated price is such an act. Canadian Nat. R. Co. v. George M. Jones Co., 6 Cir., 27 F.2d 240.

The error in this is that the contracts as stated above, are not entire contracts but divisible; they provide for deliveries at different times, deliveries to be paid for separately. Such a contract is divisible. Mark v. Stuart-Howland Co., 226 Mass. 35, 43, 115 N.E. 42, 2 A.L.R. 678; Barlow Manufacturing Co. v. Stone, 200 Mass. 158, 160, 86 N.E. 306; Restatement, Contracts, Sec. 266(3) and Comment (e); Williston on Contracts, Rev.Ed., sections 861, 871. Even an entire contract may be divisible if the performances under the contract can be divided into different groups, each set embracing performances which are the agreed exchange for each other.

" Williston, supra, pp. 2452-55. The following cases support this statement of the law: Tichnor Bros. v. Evans, 92 Vt. 278, 102 A. 1031; Mark v. Stuart-Howland Co., 226 Mass. 35, 115 N.E. 42; Springfield Seed Co. v. Walt, 94 Mo. App. 76, 67 S.W. 938. See also Detroit Vapor Stove Co. v. J.C. Weeter Lumber Co., 61 Utah 503, 215 P. 995 and Annotation, Rights and remedies of purchaser under seller's agreement to assist him in reselling the goods, 29 A.L.R. 666. It is pointed out in the annotation that in only one case has the breach of such a covenant been allowed to be used as a defense to an action for the purchase price.

The evidence did not require a finding of waiver, or an agreement by the plaintiff to accept a substituted performance on the part of the defendant. See Williston, Contracts (Rev. ed.) §§ 678-682; see also General Foods Corp. v. The Felipe Camarao, 172 F.2d 131, 133-134 (C.A. 2), certiorari denied sub nomine Republic of theUnited States of Brazil v. General Foods Corp. 337 U.S. 908. Even if these issues are open for consideration, where, as here, waiver was not pleaded as an affirmative defence (compare Mark v. Stuart-Howland Co. 226 Mass. 35, 41-42, requiring pleading of abandonment or recission as affirmative defences; compare also Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 222-223), on the conflicting testimony of the plaintiff and of Soble, it could reasonably have been found by the jury that the plaintiff (a) never relinquished, by conduct or otherwise, his claim to be entitled to a minimum of four hundred cases per week; and (b) never accepted the volume of business actually sent to him by the defendant as full satisfaction of the defendant's obligation. Garfield Proctor Coal Co. v. Fitchburg Railroad, 166 Mass. 119, 123. Boyden v. Hill, 198 Mass. 477, 485-486.

II. Each sale of baby chicks was a contract of sale by itself. Mark v. Stuart Howland Co., 226 Mass. 35, 115 N.E. 42. III. The verbal contract alleged to have been made on July 14, 1952, was void under Section 268, Code of 1942. Sec. 268, Code 1942; 37 C.J.S., Sec. 147 p. 633; 77 C.J.S., Sec. 21 p. 621.