Barlow Manufacturing Co. v. Stone

Morton, J. This is an action of contract to recover upon an account annexed for certain store fixtures and furniture furnished by the plaintiff to the defendant. At the same time that the goods described in the account were ordered, certain wall cases were also ordered by the defendant of the plaintiff, and the defendant paid $25 on account on all of the goods ordered. The articles in suit were delivered to and accepted by the de [160] fendant, and no fault is found in regard to them as to price, quantity or quality, or the time of delivery. Nor is any fault found as to the price, quantity or quality of the wall cases. But the defendant contends that it was agreed that all of the articles should be delivered promptly, that the wall cases were not so delivered, and that he was damaged thereby and is entitled to recoup in this action the damages thus sustained. There was evidence tending to show that the wall cases were to be ordered by the plaintiff from Michigan, and were so ordered, and were delivered to and accepted by the defendant and were paid for by him pursuant to a draft therefor with a bill of lading attached drawn on him by the plaintiff. The defendant concedes that the right to recoupment does not extend to any transaction which is not involved in this suit. But he contends that the purchase of the goods, including the wall cases as well as those in suit, constituted an entire contract which has not been severed by the act of the parties or otherwise, and that he therefore can recoup in this action the damages sustained by reason of the failure of the plaintiff to deliver the wall cases promptly as agreed. The first question, therefore, is whether the contract was or was not an entire contract. If the contract was an entire one and there has been no severance of it, then the right to recoup is clear. Sawyer v. Wiswell, 9 Allen, 39. If it is not an entire contract, then it is equally clear that no right of recoupment exists. Primarily, the question whether a contract is entire or separable is one of intention. But the general rule is that where the part to be performed by one party consists of several distinct and separate items and the price to be paid is apportioned to each item according to the value thereof and not as one unit in a whole, or a part of a round sum, the contract may and will be regarded as severable. And this rule holds true, even though the contract may be in a sense entire, if what is to be paid is clearly and distinctly apportioned to the different items as such, and not to them as parts of one whole. West End Manuf. Co. v. Warren Co. 198 Mass. 320. Young & Conant Manuf. Co. v. Wakefield, 121 Mass. 91. Robinson v. Green, 3 Met. 159. Miner v. Bradley, 22 Pick. 457. Badger v. Titcomb, 15 Pick. [161] 409. Pierson v. Crooks, 115 N. Y. 539, 555. 2 Parsons on Contracts, (9th ed.) 517. Hammond on Contracts, § 463. For a case in which it was held that the contract was entire although possessing elements of divisibility, see Stewart v. Thayer, 168 Mass. 519. In the present case the articles sued for and the wall cases were all ordered at the same time, and $25 was paid on account generally. But the articles themselves, though of the same general nature, namely, store fixtures and furniture, were entirely separate and distinct from each other, except so far as they formed parts of the same lot, and the price for each article was different from that of the other articles, except as aforesaid, and the amount which would be due from the defendant to the plaintiff had to be ascertained, not with reference to some unit of value, but by adding together the amounts to which the different articles came at the prices agreed upon. There was no agreement to sell or buy the articles ordered for a round sum, but the articles were bought and sold at the prices affixed to each. In effect there was, as said in Young & Conant Manuf. Co. v. Wakefield, supra, a contract for each article or lot of articles sold, and the defendant’s contention that the contract was an entire one cannot therefore be sustained. The fact that the goods were all ordered at one and the same time, and that $25 was paid on account, though tending to show that in a sense the contract was entire, does not show that it must be so construed as matter of law. The act of the plaintiff in crediting the $25 on the account in suit has no material significance one way or the other. It was the only thing that he could do after the defendant had paid for the wall cases. It follows that the ruling of the judge excluding the evidence that was admitted de lene in regard to the matter of damages was correct. This view of the case renders it unnecessary to consider whether there was evidence which would have warranted the finding of a severance, if the contract had been entire. Exceptions overruled.