Mansfield v. Trigg

Wells, J. If it were to be held, upon the testimony of James Mansfield, that there were two contracts of sale, each of one half the whole number of barrels of mackerel; or that the entire contract was divisible in accordance with the several deliveries; it would not permit the defence on the ground of rescission to be maintained, because there has been no complete return according to either of such divisions. The presiding judge ruled, not only that it was not an entire contract, but in effect that it was divisible so as to give the defendants a right of rescission as to each package or barrel separately. This was error. The entirety of the contract is not [354] destroyed by the circumstance that the subject of the sale is oi such uniform character as to be readily divisible proportionally, by weight or measure, or is contained in packages of uniform quantity and value, even with the added circumstance that the consideration is named only by way of fixing the rate or price of the unit of such division. Clark v. Baker, 5 Met. 452. Morse v. Brackett, 98 Mass. 205. The entirety may be broken by the concurrent act of both parties, so that a partial rescission may be effected. Thus when a part only of the goods have been delivered, upon a contract like the present, and one party refuses to complete it by delivering or accepting the remainder, the other party may then elect to treat such refusal as a repudiation or rescission of the unfulfilled part of the contract. If the seller refuse to deliver, the purchaser may recover back any excess of purchase money that has been paid by him, beyond the price of what has been delivered. Hill v. Rewee, 11 Met. 268. But if the breach of contract on the part of the seller is only in the quality, the other party cannot convert that into a rescission, but must, if he intends to rescind at all, rescind in toto. Clark v. Baker, ubi supra. These two cases illustrate the distinction, and the principle on which it rests. It is applicable to a defendant resisting payment, as well as to a plaintiff seeking to recover back what he has overpaid. The defendants contend that the barrels returned were of a different kind, and therefore not within the contract at all; relying upon the decision in Gardner v. Lane, 12 Allen, 39. We need not consider whether this defence could be maintained upon the evidence ; because, if it was intended to be presented to the jury by the instructions which are excepted to, it is not presented as a distinct and separate proposition, and therefore the verdict cannot be taken to have established the fact so relied on. The instructions are mainly if not exclusively adapted to the question of breach of warranty of quality. In strictness, both warranty and rescission import that the subject is within the contract, and passed to the purchaser by its operation. The rejection and return of articles of a different kind or description, not answering to the terms of the contract, does not stand upon the ground of [355] rescission; nor does the right to return them depend upon the existence of a warranty. By the instructions excepted to, if the jury found any breach of the warranty in respect to any of the separate barrels returned, they were permitted to give effect to the attempted rescission just so far as the proof of the breach extended. This would be the proper effect to give to proof that the articles returned were not of the kind contracted for; that is, that they did not come within the class or description of property purchased. But to give such effect to the return as a rescission or partial rescission requires that the contract be construed as the court below did construe it; to wit, as severable by the measure of each separate package. We find nothing in the case to justify such a construction. Exceptions sustained.