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Section 44. Delivery of Wrong Quantity.-(1.) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retails the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for said goods at the contract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not to perform his contract in full, the buyer shall not be liable for more than the fair value to him of the goods so received.

(2.) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the remainder, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.

(3.) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract, and reject the remainder, or he may reject the whole.

(4.) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.

The delivery must correspond with the terms of the contract in respect to quantity. Tender of delivery of either more or less than the quantity sold is not a compliance.1

LESS QUANTITY.-If the seller tenders or delivers less than the quantity called for by the terms of the contract, the buyer may refuse to accept it. If the buyer receives a portion delivered

1. 2 Mechem on Sales, § 1157; Benjamin on Sales, § 689.

The rule is applied less rigidly where the goods are bought through a correspondent who is an agent for buying them. Benjamin on Sales, § 590; Marland v. Stanwood, 101 Mass. 470; Ireland v. Livingston, L. R. 2 Q. B. 99, L. R. 5 Q. B. 516, 5 H. of L. Cas. 395; Johnston v. Kershaw, L. R. 2 Exch. 82, 36 L. J. Ex. 44; Jefferson v. Querner, 30 L. T. (N. S.) 867; Fairbanks v. Low, 12 New Zealand, 302.

Conversely: "If a man contracts to buy 150 quarters of wheat, he is

not at liberty to call for a small portion without being prepared to receive the whole quantity." Kingdom v. Cox, 5 C. B. 522, 526.

2. Downs v. Marsh, 29 Conn. 409, 413; Rockford, etc., R. Co. v. Lent, 63 Ill. 288; Smith v. Lewis, 40 Ind. 99; Langan, etc., Co. v. Tennelly, 122 Ky. 808; Salmon v. Boykin, 66 Md. 541; Rommel v. Wingate, 103 Mass. 327; Collins v. Delaporte, 115 Mass. 159; Churchill v. Holton, 38 Minn.

519; Crowl v. Goodenberger, 112

Mich. 683; Bruce v. Pearson, 3 Johns. (N. Y.) 534; Reed v. Randall, 29 N. Y. 355; Avery v. Willson, 81 N. Y.

in parcels from time to time relying upon the delivery of the residue, he may reject the part received, if the deficiency is not made up. 3

WAIVER. If the buyer, with full knowledge, accepts the deficient quantity and waives the delivery of the residue, he must pay therefor at contract rates.*

341; Sefton v. Minn. Type Foundry Co. (Ore. 1892), 29 Pac. 6; Oxendale v. Wetherell, 9 B. & C. 386, 4 Man. & Ry. 429; Colonial Ins. Co. v. Adelaide Marine Ins. Co., 12 App. Cas 128, 138; Brandt v. Lawrence, 1 Q. B. D. 344, C. A.; Bowes v. Shand, 2 App. Cas. 455; Reuter v. Sala, 4 C. P. D. 239, 244 C. A.; Morgan v. Gath, 3 H. & C. 748, 34 L. J. Ex. 165; Shipton v. Casson, 5 B. & C. 376, 378, 382; Richardson v. Dunn, 2 Q. B. 218, 42 E. C. L. 645; Dixon v. Fletcher, 3 M. & W. 145, 146; Nicholson v. Bradfield Union, L. R. 1 Q. B. 620; Waddington v. Oliver, 5 B. & P. 61; Benjamin on Sales, § 690.

"The seller is bound to deliver the quantity stipulated, and has no right either to compel the buyer to accept a less quantity, or to require him to select part out of a greater quantity.” Norrington v. Wright, 115 U. S. 188.

"When a merchant agrees to sell, and to ship to the rolling mill of the buyer, a certain number of tons of pig iron at a certain time, both the amount of iron and the time of shipment are essential terms of the agreement; the seller does not perform his agreement, by shipping part of that amount at the time appointed and the rest from time to time afterwards; and the buyer is not bound to accept any part of the iron so shipped." Cleveland Rolling Mill Co. v. Rhodes, 121 U. S. 255.

336 dozen knobs were tendered in performance of a contract, and refused on the ground of non-conformity of a part to specifications. Held, that the buyer was not bound to receive less than 336 dozen, complying Iwith the terms of the contract. Wright v. Barnes, 14 Conn. 518, 523.

Vendor sold perfect rosewood cut

into pieces of a certain shape for ten cents a pound and shipped 333 pounds of which only 176 were perfect, and these pieces were weighed and set apart by the vendee. Held, that the vendor could recover the agreed price for the 176 pounds without showing an acceptance of those pieces. Rodman v. Guilford, 112 Mass. 405. Distinguishing Brewer v. Housatonic R. R. Co., 104 Mass. 593.

Where part of the goods going to make up the quantity sold are not in compliance with the terms of the contract in kind or quality, the buyer may, at his option, reject the whole or the part not complying with the terms of the contract. Mansfield v. Trigg, 113 Mass. 350, 354; Clark v. Baker, 46 Mass. (5 Met.) 452; Morse v. Brackett, 98 Mass. 205; Seixas v. Ockershausen, 43 Hun (N. Y.), 559.

3. Polhemus v. Heiman, 45 Cal. 573; Bowker v. Hoyt, 35 Mass. (18 Pick.) 555; Nightingale v. Eiseman, 121 N. Y. 288; Oxendale v. Wetherell, 9 B. & C. 386; Colonial Ins. Co. v. Adelaide Marine Ins. Co., 12 App. Cas. 128, 138; 2 Mechem on Sales, § 1161; Benjamin on Sales, § 690.

4. Larkin v. Mitchell Lumber Co., 42 Mich. 296; Churchill v. Holton, 38 Minn. 519; Avery v. Willson, 81 N. Y. 341; Cunliffe v. Harrison, 6 Exch. 903; Hart v. Mills, 15 M. & W. 85; Benjamin on Sales, § 690.

"He had a right to reject them because the terms of his order had not been complied with, but he might waive the exercise of that right, and, if he did, he would be liable for the goods actually received in the same manner as if his whole order had been supplied. And if the goods actually came to his use, then he would be liable upon an implied promise

ENTIRE CONTRACT.-Where, under an entire contract, the goods. are delivered in parcels or instalments, and the buyer receives and uses or disposes of part of the goods in reliance upon full performance of the contract by the seller, the common law rule is that if the seller fails to complete his performance without a valid excuse, he cannot recover anything, on the ground that, by the express contract, the delivery of the whole quantity is a condition precedent to the buyer's obligation to pay, and the law will not imply a contract where an express contract between the parties exists.5

raised by law to pay for them." Downs v. Marsh, 29 Conn. 409, 413. Citing Corning v. Colt, 5 Wend. (N. Y.) 253.

The postponement by agreement of the delivery of a part of timber sold does not prevent the recovery of the price of a portion delivered (Newton v. Winchester, 82 Mass. (16 Gray) 208), and the refusal of the vendee to pay for portion delivered is not ground for vendor to rescind contract. Winchester V. Newton, 84 Mass. (2 Allen) 492.

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While the defendants were not bound to accept a delivery of a portion of the boxes of glass, and had a right to reject or retain the same as they saw fit, yet if they elected to receive the part delivered, appropriated the same to their own use, and by their acts evinced that they waived this condition, they became liable to pay for what was actually delivered. This rule is established in numerous reported cases, and the question of waiver is frequently one of fact to be determined by the circumstances and the evidence. Vanderbilt v. Eagle Iron Works, 25 Wend. (N. Y.) 665; Corning v. Colt, 5 Wend. 253; Krom v. Levy, 3 N. Y. Supp. 704; 6 Id. 253; Flanagan v. Demarest, 3 Rob. (N. Y.) 173; Norrington v. Cook, 2 N. Y. Supp. 423; Welch v. Moffatt, 1 N. Y. Supp. 575." Avery v. Willson, 81 N. Y. 341.

To the same effect is Williamette Steam Mills Co. v. Union Lumber Co., 94 Cal. 156.

"A vendee may accept a delivery

of a part of the property and waive the delivery of the remainder, and this may be shown by circumstances." Kein v. Tupper, 52 N. Y. 550, 555.

5. Williams Mfg. Co. v. Warner Ref. Co., 125 Ga. 408; Baker v. Higgins, 21 N. Y. 397; Catlin v. Tobias, 26 N. Y. 217; Kein v. Tupper, 52 N. Y. 550; Nightingale v. Eiseman, 121 N. Y. 288; Hall v. Littauer, 162 N. Y. 569; Solomon v. Neidig, 1 Daly (N. Y.), 200; Dula v. Cowles, 52 N. C. (7 Jones) 290; Witherow V. Witherow, 16 Ohio, 238; Rinehart v. Olwine, 5 W. & S. (Pa.) 162, 167; Estill v. Weaver, 19 Tex. 543; 2 Mechem on Sales, § 1162.

"The contract being entire and indivisible, the defendant was not bound to accept any part of the goods unaccompanied by the remainder; certainly not unless she was notified that the remainder of the goods were to be delivered shortly, and not even in that event unless she was given the option to accept conditionally that portion of the goods which was delivered in advance of the rest." Equitable Mfg. Co. v. Engelke, 68 N. J. L. (39 Vroom.) 567, 570.

"Part performance of an entire contract, where there is manifestly no intention to sever, change, or in any wise alter or modify the contract, as originally made, furnishes no ground of recovery pro tanto. In 2 Kent's Com. 509, the rule is laid down with great clearness: 'With respect to part performance of an entire contract for the sale and delivery of personal property, of a given

But if the seller fails to fully perform his contract because of

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quantity at a specified price and time a delivery of a less quantity than that agreed on without any act or consent of the other party, will not entitle the party who has delivered in part . . . to recover any compensation for the goods which have been delivered.

The entire performance is a condition precedent to the payment of the price, and the courts cannot absolve men from their legal engagements or make contracts for them.' And so are all the New York cases. Champlin v. Rowley, 13 Wend. (N. Y.) 258; Same Case, in error, 18 Wend. (N. Y.) 187, and see note, 194; Mead v. Degolyer, 16 Wend. (N. Y.) 632; Paige v. Ott, 5 Denio (N. Y.), 406; McKnight v. Dunlop, 4 Barb. (N. Y.) 36.

"In Ketchum v. Evertson, 13 Johns. (N. Y.) 364, Spencer, J., said: 'It may be asserted with confidence that a party who has advanced money, or done an act in part performance of an agreement, and then stops short, and refuses to proceed to the ultimate conclusion of the agreement, the other party, being ready and willing to proceed and fulfil all his stipulations according to the contract, has never been suffered to recover for what has been thus advanced or done.' 'It would be an alarming doctrine to hold that the plaintiff might violate the contract, and because he chose to do so, make his own infraction of the agreement the basis of an action for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiff has.'

"In the leading case of Cutter v. Powell, 6 T. R. 320, Kenyon, C. J., said the rule that where the parties have come to an express contract, none can be implied, has prevailed so long as to be reduced to an axiom in the law,' and Grose, J., added, 'the

written contract speaks for itself, and, as it is entire, and as the defendant's promise depends on a condition precedent to be performed by the other party, the condition must be performed before the other party is entitled to receive anything under it. The plaintiff has no right to desert the agreement, and recover on a quantum valebant, for wherever there is an express contract, the parties must be guided by it; and one party cannot relinquish or abide by it as may suit his advantage.'

"These are no less rules of law than of sound morals." Haslack v. Mayers, 26 N. J. L. 284, 289-290.

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This rule (that where the agreements go to the whole of the consideration on both sides, the promises are dependent, and one of them is a condition precedent to the other, and full performance is required before there can be any recovery), does not apply, if one of the parties has received and enjoyed any benefit from the contract, and certainly not unless full performance is made a condition precedent to payment. The law implies a promise by the party to pay for what has thus been received and allows him to recover any damages he has sustained by reason of the breach, for this is exact justice." Coal Co. v. Ice Co., 134 N. C. 574, 579. Citing Britton v. Turner, 6 N. H. 492; Chamblee v. Baker, 95 N. C. 98; Simpson v. R. R., 112 N. C. 703; Gorman v. Bellamy, 82 N. C. 496; Brown v. Morris, 83 N. C. 257; Monroe v. Phelps, 8 El. & Bl. 739; Reade v. Rann, 10 B. & C. 438; Leonard v. Dyer, 26 Conn. 172; Horn v. Batchelder, 41 N. H. 86; Bush v. Jones, 2 Tenn. 190; Duncan v. Baker, 21 Kan. 99; Lamb v. Brolaski, 38 Mo.. App. 51; Myer v. Wheeler, 65 Ia. 390; Hanson v. C. S. & H. Co., 73 Ia. 77; Minn. Lum. Co. v. Whitebreast Coal Co., 160 Ill. 85, 31 L. R. A. 529.

facts which constitute a valid excuse, he may recover quantum valebat less the vendee's damages for breach of contract. 6

6. Harralson v. Stein, 50 Ala. 347; Forbes v. Rogers, 143 Ala. 208; St. Louis, I. M. & S. R. R. Co. v. Wynne Hoop, etc., Co., 81 Ark. 373; Ward Furn. Co. v. Isbell, 81 Ark. 549; Richards v. Shaw, 67 Ill. 222; Holden Steam Mill v. Westervelt, 67 Me. 446; Bowker v. Hoyt, 35 Mass. (18 Pick.) 555; Rodman v. Guilford, 112 Mass. 405; Hedden v. Roberts, 134 Mass. 38; Clarke v. Moore, 3 Mich. 55; Meade v. Rat Portage Ins. Co., 93 Minn. 343; Britton v. Turner, 6 N. H. 481; Flanders v. Putney, 58 N. H. 358; Coal Co. v. Ice Co., 134 N. C. 576; Shaw v. Badger, 12 S. & R. (Pa.) 275; Am. Car & Foundry Co. v. Altoona R. R. Co.. 218 Pa. St. 519, 523; Oxendale v. Wetherell, 9 B. & C. 380; Shipton v. Casson, 5 B. & C. 378; Bragg v. Cole, 6 J. B. Moore, 114; Nugent v. Armour Packing Co., 208 Mo. 480; 2 Mechem on Sales, §

1182.

A coal merchant in Baltimore contracted to ship 5,000 tons of coal to the vendee in Boston from time to time during nine months, "but if prevented or obstructed by breaches or other unavoidable occurrences on the railroads or at the mines, no claims of damages will be allowed." Breaches occurred on the railroad. In an action for non-delivery, it was held that the vendor was not bound to deliver to the vendee the whole amount of their order to the exclusion of other customers, but that his obligation to the vendee would be satisfied by a delivery to them of a proportionate amount. Oakman v. Boyce, 100 Mass. 477.

"There are cases in which, upon contracts for the manufacture or sale of a quantity of articles, at an agreed price for each, a delivery and acceptance of part has been held to give a right of recovery for that part, notwithstanding a refusal or failure to fulfil the contract, deducting what

ever damages the other party sustained by the non-fulfillment of the contract. Such are the cases of Bowker v. Hoyt, 35 Mass. (18 Pick.) 555; Oxendale v. Wetherell, 9 B. & C. 386; Champion v. Short, 1 Camp. 53." Haslack v. Mayers, 26 N. J. L. 284, 292.

Some jurisdictions hold that the buyer must either return or pay for the part received, when the time for delivery has elapsed, whether or not the seller has a valid excuse for nondelivery. Benjamin on Sales, § 690; Willamette, etc., Mfg. Co. v. Union Lumber, etc., Co., 94 Cal. 156; Keen v. Preston, 24 Ind. 395; Richards v. Shaw, 67 Ill. 222; Defenbaugh v. Weaver, 87 Ill. 132; Marland v. Stanwood, 101 Mass. 470; Hedden v. Roberts, 134 Mass. 38; Clark v. Moore, 3 Mich. 55; Wilson v. Wagar, 26 Mich. 452, 457; Chapman v. Dease, 34 Mich. 375; Shaw v. Badger, 12 S. & R. (Pa.) 275; Barton v. Kane, 17 Wis. 38, 18 Wis. 262; Oxendale v. Wetherell, 9 B. & C. 386; Mavor v. Pyn, 3 Bing. 285.

"The whole parcel of goods ordered, not having been sent, the property in those actually forwarded did not vest in the defendant upon their delivery to the carrier, nor was the defendant bound to accept them upon their arrival at the place of destination. To bind the purchaser to pay for goods forwarded upon his order, the terms of the order must be complied with; and, when only part of the goods ordered have been forwarded, there is no express contract between the parties upon which an action can be maintained for the price of them, and no implied promise to pay for them arises until the purchaser has received them. But, if the goods in fact come into the buyer's hands and use, then the law implies a promise to pay for them, and an action for goods sold and de

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