Young & Conant Manufacturing Co. v. Wakefield

DEVENS, J.

It was admitted at the trial that there had been a breach of warranty as to all the articles sold by the plaintiff to the defendant. Under the instruction of the court, before the jury could find that there had been a rescission of the contract by the defendant as to those of the articles returned, it was necessary for him not only to show that those goods were returned seasonably and in good condition, but also that the cloak actually sold and not returned was so sold under an agreement that the defendant might expose the goods bought by him to sell in order to ascertain if they were salable, and also that the money for the cloak was retained by the plaintiff when sent to it.

Such an instruction was certainly as favorable as the defendant could have asked. Even if the contract were originally entire, it was competent to prove, by the agreement of the parties, that it could also be severed and divided, so that such articles as the defendant found unsalable he could return, while he paid the price for those which he actually sold, and the instruction required such an agreement to be found by the jury.

We do not deem this contract to have been an entire one. That a contract should be of that character it is not sufficient merely that the subjects of purchase are included in the same instrument of conveyance. If but one consideration is paid for all the articles sold, so that it is not possible to determine the amount of consideration paid for each, the contract is entire. Miner v. Bradley, 22 Pick. 457 . So if the purchase is of goods as a particular lot, even if the price is to be ascertained by the number of pounds in the lot, or the number of barrels in which the goods are packed, the contract is also held to be entire. Clark v. Baker, 5 Met. 452 . Morse v. Brackett, 98 Mass. 205 . Mansfield v. Trigg, 113 Mass. 350 . While, in the cases last referred to, it could be ascertained what was the amount of con *93 sideration paid for each pound or barrel, yet, the articles having been sold as one lot, it was to be inferred that one pound or barrel would not have been sold unless all were sold. While therefore the seller must have expected that the purchaser would have the right to rescind the contract, if the goods did not correspond with the warranty, he could not have intended that the purchaser should divide them merely because they were divisible by weight or measure, and claim the right to rescind as to part and affirm as to the remainder.

When _many different articles are bought at the same time' for distinct prices, even if they are articles of the same general description, so that a warranty that they are all of a particular1 quality would apply to each, the contract is not entire, but is in effect a separate contract for each article sold. Johnson v. Johnson, 3 B. & P. 162. Miner v. Bradley, ubi supra. Such was the contract in the present case. The articles sold differed each from the other, although all were of the india rubber goods manufactured by the plaintiff. To each article a separate price was affixed, and the sale of it in no way depended upon that of the others, so that they were not united in a single sale as one lot. A number of separate contracts were shown by the same order and bill of parcels, but these did not make of them a single transaction only. As to each article there was a right to rescind if the warranty in regard to it was broken.

¡Exceptions overruled.