Sec 898

When a specific quantity is stipulated for, the purchaser is entitled to demand this quantity. If less be delivered he may refuse to receive it; or if a partial delivery be made, with a promise to follow it up by sending the rest, he may return what he has thus received when he finds that the residue will not be delivered in time,4 though by accepting a part without objection he disaffirms the entirety of the contract.5 Or, if a larger quantity is sent him, and the mass is not readily divisible, he may refuse to accept in toto.6 If, however, he accept what is delivered to him, whether greater or less than the amount agreed on, then he is liable in goods sold and delivered for what he receives.1 A slight nominal variance in the amount of work done, or of material delivered, when the contract is substantially performed, is no defence.2

Quantity stipulated for must be delivered.

1 Brown V. Johnson, 10 M. & W. 331; King V. Dowdell, 2 Sandf. 131.

2 Story on Contracts, sec 1328; Story on Notes, sec 220; Story on Bills, sec 338; Homes V. Smith, 20 Me. 284; Salter V. Burt, 20 Wend. 205; Stebbins V. Leo-wolf, 3 Cush. 137.

3 Story on Notes, 7th ed. (1876), sec 220. In Stebbins V. Leowolf, 3 Cush. 137, the supreme court of Massachusetts, as the contract before them was by New York parties, and the contract was to be performed in New York, followed what they held to be the New York rule, which is that given in the text, though it was said that the point was one as to which "there had not been an entire unanimity of decision.".

4 Supra, sec 190-1, 259, 293, 579, 601; Benj. on Sales, 3d Am. ed. sec 690; Morgan V. Gath, 3 H. & C. 748; Wadding-ton V. Oliver, 2 B. & P. N. R. 61.

5 Roberts V. Beatty, 2 P. & W. 63.

6 Leake, 2d ed. 824; Benj. on Sales, 3d Am. ed. sec 47, 691; Cross V. Eglin, 2 B. & Ad. 106; Dixon V. Fletcher, 3 M. & W. 146; Hart V. Mills, 15 M. & W. 85; Levy V. Green, 8 E. & B. 575; Rylands V. Kreitman, 19 C. B. N. S. 351; and see supra, sec 579 et seq. That rescission may be granted on failure of part performance, see supra, sec 293, 580.

Sec 899

When a duty is divisible, it may be performed in parts, and the receiver may be chargeable pro tanto, and a vendee to whom a part of an order of divisible goods is delivered is liable for what he received, unless he has suffered damage to that amount by the vendor's non-performance.3 Hence on a contract to publish a work in numbers, at so much a number, it has been held that on partial performance there may be partial recovery.4 On a contract, also, to deliver two hundred stove patterns, a part only of which were made, it was held that the vendor was entitled to recover on a quantum meruit for what was accepted by the vendee, deducting any damages the latter sustained from the non-completion of the contract.5 - A contract to deliver 50,000 tons of coal in a year, in shipments at the rate of 6000 tons per month, at the buyer's option, on notices to be given on a day specified in each month as to the amount to be delivered in the next month, is divisible; and it has been held that on such a contract, after part performance, the fact that a portion of the coal received consisted of coal inferior to that contracted for, does not give the vendee the right to rescind. His remedy is set-off or suit for damages.1 - "The buyer is bound to pay for any part that he accepts; and after the time for delivery has elapsed, he must either return or pay for the part received, and cannot insist on retaining it without payment until the vendor makes delivery of the rest."2 - In New York, however, it is held that where there is a contract to deliver a specified quantity of goods, on a particular day, at a lumping price, to be paid on delivery and acceptance of the whole, the vendor cannot recover in goods sold and delivered for a part delivered and accepted by the purchaser.3 - So far as concerns sales of real estate, when there has been a partial failure of consideration, and the contract is in this respect divisible, there can be a recovery for the portion of the contract as to which the consideration holds good.4

When duty is divisible, performance may be partial.

1 Benj. on Sales, sec 47, 690; Wad-dington V. Oliver, ut supra; Oxendale V. Wetherill, 9 B. & C. 386; Champion V. Short, 1 Camp. 53; Morgan V. Gath, 3 H. & C. 748; Booth V. Tyson, 15 Vt. 515; Bowker V. Hoyt, 18 Pick. 556; Marland V. Stan wood, 101 Mass. 470; Wright V. Barnes, 14 Conn. 518; Roberts V. Beatty, 2 P. & W. 63; Rockford, etc. R. R. V. Lent, 63 Ill. 288; Smith V. Lewis, 40 Ind. 98; and see observations of Wilde, J., in Snow V. Ware, 13 Met. 49.

2 Gilman V. Hall, 11 Vt. 510; Woodward V. Fuller, 80 N. Y. 812; Chambers V. Jaynes, 4 Barr, 39. That substantial performance is sufficient, see supra, sec 607, 869.

3 Supra, sec 579, 712. See last section, and to same effect, Glazebrook V. Woodrow, 8 T. R. 366; Bowker V. Hoyt, 18 Pick. 555; Foxall V. Fletcher, 59 How. Pr. 88; Shaw V. Badger, 12 S. & R. 275; Sinnott V. Mullin, 82 Penn. St. 333. As to effect of partial impossibility, see supra, sec 330. That when after a partial delivery of goods final delivery is prevented the vendor may maintain indebitatus assumpsit, see supra, sec 712. As to whether a contract is rescinded by refusal to accept instalments, see supra, sec 580.

4 Mavor V. Pyne, 3 Bing. 235; supra, sec 712.

5 Booth V. Tyson, 15 Vt. 515; and see generally Roberts V. Havelock, 3 B. & Ad. 409; and cases cited supra, sec 712.

1 Scott V. Coal Co., 89 Penn. St. 231; see supra, sec 580; and see, to same effect, Tenny V. Mulvaney, 8 Oregon, 129. That a contract to peel a certain quantity of hemlock timber by a specified date, and to start the timber on good roads, D. to have the bark when started as his remuneration, is not divisible, see Hartley V. Decker, 89 Penn. St. 470. That delivery of successive instalments may be conditioned on delivery of first, see supra, sec 580. No precise rule can be given by which the question whether a contract is entire or divisible can be determined. Like most other questions of construction, it depends upon the intention of the parties to be gathered from what appears upon the face of the contract and surrounding circumstances. Gray V. Hinton, 2 McCrary, 167.

2 Benj. on Sales, 3d Am. ed. sec 690, citing in addition to cases cited above, Star Glass Co. V. Morey, 108 Mass. 570; Shields V. Pettee, 2 Sandf. 202; McKnight V. Devlin, 52 N. Y. 399; Richards V. Shaw, 67 Ill. 222; Wilson V. Wagar, 26 Mich. 452.

3 Mead V. Degolyer, 16 Wend. 632; Champlin V. Rowley, 18 Wend. 187;.

Paige V. Ott, 5 Denio, 406; Baker V. Higgins, 21 N. Y. 397; McKnight V. Devlin, 52 N. Y. 399; Kein V. Tupper, 52 N. Y. 550; and see Witherow V. Witherow, 16 Ohio, 238; Benj. on Sales, 3d Am. ed. sec 47; 2 Pars. on Cont. 659. In a case in New York in 1880, C. contracted for $1500 to put up on O.'s premises a gas machine; but O., after receiving the castings and materials, refused to permit C. to put up the gas machine. It was held that O. was liable for damages for breach of contract, but not for the contract price. Butler V. Butler, 77 N. Y. 472.

4 Supra, sec 191, 898; Morris V. Phelps, 5 Johns. 49; Melick V. Dayton, 34 N. J. Eq. 245; Johnson V. Churchill, 49 Iowa, 257; see supra, sec 520, 746.

In Messer V. Oestreich, 52 Wis. 684, we have the following from Cassaday, J.: "When the title fails to only a part of the land conveyed, the grantee may recover in an action on the covenants of seizin and right to convey (or upon an agreement to convey) such a proportion of the whole consideration paid as the value of the part to which the title fails bore to the whole purchase-price at the time of the purchase, or of material is contracted for in such terras as to show that what the promisee contracts for is the thing as a whole. In such case if the promisor voluntarily desist from completing his engagement, after having partially complied with it, he cannot recover for the fractional services rendered, or the fractional material delivered.1 An agreement, for instance, by A. to find for a fixed fee a purchaser for a farm, only entitles A. to a fee in case he finds a purchaser for the farm as entire.2 Where, also, the part of a property sold as to which there is a failure of title, is essential to the residue, the contract is indivisible;3 and so where a horse and mare, forming a pair, are sold, though by different bids, at a public sale.4 But where a contract for labor is suspended by sickness or death, the employee (or his representatives) may recover for the services actually rendered, deducting any damages the employer may have received from non-fulfilment of contract.5 The same rule obtains in respect to work on an article subsequently destroyed by casus,6