Swift v. Opdyke

By the Court, Clerke, J. I think the judge erred in telling the jury “that if they came to the conclusion that if the contract was to deliver twenty-two bales of these goods, then the plaintiffs were not entitled to recover for the seven bales of the eight-pound goods that were delivered.” Even supposing the contract to be one and the same, it was for the sale and delivery of two different parcels, to come in different ships, at different periods of time. Each portion of the contract, therefore, was complete in itself without reference to the other. Undoubtedly, the parties could, by express terms, make this contract not only one and the same, but also indivisible. But nothing of this kind appears : nothing was even said showing that the time of payment was to be deferred until the delivery of the twenty-two bales. We have no more reason in this case than the court had in Tipton v. Feitner, (20 N. Y. Rep. 423,) to assume that the two distinct parts of the contract were intended to be dependent on each other; and, as was said in that case, “the implication must be plain and unmistakable, to justify such a conclusion, as its effect would be to impose upon the plaintiff a heavy penalty or forfeiture.” The redress to the defendant for the failure of the plaintiff in not completing the contract, would be by a separate action for damages, or by a counter-claim in this action. Whether this transaction may be deemed one and the same ' contract and yet divisible, or whether it may be deemed two separate and distinct contracts, the delivery of the seven bales, took the claim for the value of these bales out of the statute of frauds. In the one case it amounted to a part performance : the purchaser having complied with the statute in accepting part of the goods. It is not necessary, at least it is not provided in the statute, that the acceptance shall be [278] simultaneous with the contract. If this transaction may be deemed to consist of two distinct contracts, the delivery of the seven bales amounted to an entire performance of one of the contracts; the acceptance of these bales being a waiver of the right to eight. The order should be reversed, and a new trial ordered, with costs to abide the event. [New York General Term, Febuary 6, 1865. Ingraham, Clerke and Sutherland, Justices.]