Shinn v. Bodine

The opinion of the court was delivered, by Agnew, J. — The entirety of a contract depends upon the inten-' tion of the parties and not on the divisibility of the subject. The severable nature of the latter may often assist in determining the intention, but will not overcome the intent to make an entire contract, when that is shown. Nor will the mode of measuring the price, as by the bushel, ton or pound, change the effect of the agreement when it is entire. If a party should agree to deliver one bullock, at a certain price per pound, and on a certain day, no one would doubt the entirety of the contract, notwithstanding the mode of measuring the price. But the indivisibility of the contract would not be less, if he had contracted in the same terms to deliver two. Precisely the same rule would apply to an agreement to deliver 100 bushels of wheat by a certain day for a certain price per bushel, and the entirety of the contract would not be disproved if the agreement required it to be delivered by the wagon-load. Just so, here, the contract for the delivery of 800 tons of coal at a stated price per ton, is in language clearly denoting an entire contract for that much coal, the price measured by the ton not indicating any intent to sever in payment. Nor does the provision for delivery on board vessels sent for the coal during August and September, indicate an intent [186] to sever the payment, for delivery by the vessel-load was a necessity growing out of the quantity to be delivered and the distance of transportation. And the last clause was but a provision against inability to send for all the coal in the prescribed time, and fails to indicate any intent to sever the payment. No part of the agreement disclosing an intent to sever in the payment, the legal presumption drawn from the entire contract to deliver 800 tons of coal remains, that it was to be paid for on delivery. On authority the case is not less clear: Shaw v. Badger, 12 S. & R. 275; Shaw v. Turnpike Co., 2 Penna. R. 454; Harris v. Ligget, 1 W. & S. 301; Davis v. Maxwell, 12 Metcalf 286. The authorities cited by the plaintiff in error are all distinguishable. Lester v. McDowell, 6 Harris 92, was a question in replevin, of title dependent on delivery. The same question arose in Welsh v. Bull, 8 Casey 13, the action there being trespass. In Reybold v. Voorhees, 6 Casey 116, the contract clearly indicated a severance in the payments. Mavor v. Pyne, 2 Car. & P. 91, was put on the ground of the refusal of the purchaser to take the undelivered numbers of the work subscribed for. The idea thrown out by Best, C. J., that though the contract was entire for the whole work in numbers, yet there was a subordinate contract to pay for each number on delivery, is plainly founded on what he understood to be a custom of the trade. The contract in Withers v. Reynolds, 2 Barn. & Adol. 882, was for no specific quantity of straw, but a running agreement for the delivery of wheat straw for the use of the stables, until a certain day, at a specified price per load, with an agreement to pay the price for each load. The intention to sever the payment was clear. The other English cases cited need no notice more than to say they are clearly distinguishable from this. We are of opinion that the contract here for the delivery of 800 tons of coal was .entire, and payment of the price waited on the fulfilment. It was, therefore, no.t in the power of the defendants below to demand payment on each vessel-load, and to rescind on a refusal to pay in this mode. Judgment affirmed.