Rothschild Bros. v. Wise

Me. Justice Worthington delivered the opinion of the court. It will be seen from this statement that Eothschild, the salesman, and Wise, the acting purchaser, are the only two persons who know of their own knowledge, what hats were bought. Eothschild testifies that the hats shipped were of the same kind and quality as the samples shown. Wise, the purchaser, testifies that the hats sent out of thirteen “dots ” were not. That the hats from these thirteen “ lots ” were of the vintage of 1895, while he bought hats for the market of 1896. The jury believed Wise, and found for appellee. We see no reason for interfering with their finding upon this issue. Appellant insists that the court erred in holding that appellee could receive a part of the goods sold that were according to sample, and could return those that were not. In other words, appellant insists that the contract of purchase was an entire contract, and not divisible, and that appellee had to take all the hats or none. This is not the law as we understand it, in a case like this. If the hats purchased had been p.11 of one “lot,” the contention of appellant would be correct. In such case the purchaser, if he desired to rescind the contract, would have to return the entire “ lot.” This is. decided by Harzfield v. Converse, 105 Ill. 536, and Wolf v. Dietzsch, 75 Ill. 207 cited by appellant. In Telford v. Albro, 60 Ill. App. 359, a part of the neck wear had been sold, and the remainder was burned up with the store. The question presented in the case at bar did not come up in the cases above referred to. In Story on Contracts, Vol. 1, Sec. 24, it is said : “In this diversity of cases, it is difficult to state any rule. But on the whole the weight of opinion and the more reasonable rule would seem to be, that where there is a purchase of different articles, at different prices, at the same time, the contract would be several as to each article, unless the taking of the whole was rendered essential, either by the nature of the subject-matter or by the act of the parties.” Many authorities might be cited in support of this proposition. We cite only the following: “ An agreement is divisible when it embraces several undertakings each supported by a distinct consideration.” McDaniels v. Whitney, 38 Iowa, 64. “ When many different articles are bought at the same time for different prices, even if they are articles of the same general description, so that a warranty that they are all of a particular quality would apply to each, the contract is not entire, but it is in effect a separate contract for each article sold.” Young & Co. v. Wakefield, 121 Mass. 91. In Bank of Antigo v. Union Trust Co., 149 Ill. 348, the court say: “ The rule' laid down by Parsons, Vol. 2, p. 257, is, ‘ If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be several.’” And Wharton says, Sec. 748, Laws of Contracts : “ When a consideration is divisible and the price can be apportioned, then if a distinct divisible portion of the consideration fails, the price paid for such portion can be recovered back,” and that “in cases * * * in which the consideration is divisible, the purchaser may elect to take what can be delivered to him, and in such case, if the purchase money has been paid, he can recover back the excess, or if there has been no payment he can defend pro tanto.” This case also cites Young & Co. v. Wakefield, cited supra. In the case át bar the hats from each “'lot ” had a separate price, and were put down on the memorandum as of that “ lot ” with the price annexed. The hats in each “ lot ” were in effect separate sales. There is nothing to indicate that the price of the hats in any one “ lot,” was in any way influenced by the price of hats in any other “ lot,”or that their sale depended upon the sale of liats from other “ lots.” The bargain and sale lacked the elements of an entire contract and could be affirmed in part and rescinded in part; The introduction of certain bills by appellee to prove a custom of wholesale dealers in St. Louis to take back goods when not satisfactory was objected to by appellant. It was error to admit these bills for that purpose, but in view of all the testimony in the case we'do not think it reversible error. J udgment affirmed.