Joel Bowker versus Stephen Hoyt et al., 18 Pick. 555

Wilde J. afterward drew up the opinion of the Court. It is a well established principle, that on an entire contract for the sale and delivery of a specific quantity of goods, the vendee is not bound to receive part, and though part be delivered, he is not liable to pay for the same, if he offers to accept and pay for the whole, and the vendor refuses on his part to fulfil the contract.

But if the vendee accepts the delivery of a part, and prom ises to pay, the vendor may recover the price of the part delivered, although he afterwards refuses to fulfil the contract, unless the vendee shall have returned the part delivered. The case of Oxendale v.

Wetherell, 9 Barn. & Cressw. 386, was assumpsit for 130 bushels of wheat sold and delivered ; and it appeared, that the plaintiff" had contracted for 250 bushels of wheat to be delivered in six weeks ; and it was held, that the defendant, having retained the 130 bushels after the time for completing the contract had expired, was bound by law to pay for the same. The case of Champion v.

Short, 1 Campb. 53, was decided on the same principle, where it was held, that on a joint contract for the sale and delivery of several articles of merchandise, the vendee was precluded, by the acceptance of any one article, from saying that the sale was entire, and he was held responsible for the

article received. A similar decision by Hale C. B. is cited in a note, who held that though the ■ agreement in that case was entire, the several deliveries proved made several contracts. The case of Bragg v. Cole, 6 J. B. Moore, 114, was also decided on the same principle; and the same principle is laid down in Shaw v. Badger, 12 Serg. & R. 275. The principle established by these cases is founded on manifest justice, and is decisive of the present case.

The defendants accepted the 410 bushels of corn, and promised to settle the account therefor; and if there had been no such promise, the acceptance of the corn was a severance of the entirety oí the contract, and the defendants were bound to pay for the corn delivered ; for the case finds that it was to be a cash transaction.

From this liability the defendants could net-be releas ed by the failure of the plaintiff afterwards to deliver the rest of the corn, without returning to him the corn delivered ; and, as the corn was not returned, the plaintiff may well maintain his action ; but the defendants may reduce the plaintiff’s claim, by showing any damages they have received by the plaintiff’s failure to fulfil his contract ; and thus substantial justice may be done, without subjecting the defendants to the necessity of bringing a cross action. Verdict set aside, and a new trial granted.