Wright against Barnes and others, 14 Conn. 518

Church, J. Questions have been discussed, upon this hearing, which do not arise from the facts stated in the motion, and we have been called upon here, as we believe, to decide a case, a small part of which only, was tried in the court below. A tender was made by the defendants, and accepted by the plaintiff, of a sum of money to settle all disputes, growing out of the contract in question, except as to 336 dozen knobs. These, the defendants claimed, they had not accepted, and had refused to accept, because they were not finished in conformity with the requirements of the contract.

The case, then, as tried in the superior court, was, as if the plaintiff had delivered a parcel of 336 dozen knobs only, to the defendants, which they had refused to accept and pay for;— and the only question of fact was, whether they were such as the contract required ? The plaintiff claimed, that the whole conformed to contract stipulations ; but if only a part so conformed, still the defendants were bound to accept and pay for as many as were finished according to the agreement.

The defendants admitted their liability to accept and pay for the whole parcel, if it conformed to the contract: but denied that they were bound to receive a part, unless the whole answered the requirements of the contract. Upon these adverse claims, the court charged the jury, that if all the knobs in question were conformable to the contract, the plaintiff was entitled to recover for them at the contract price ; but if they were not all of them thus conformable, the defendants were not bound to accept any of them.

This charge is objected to, as we understand, on the ground, that it recognized a right in the defendants to repudiate the contract, although it might have been essentially fulfilled— that is, as the plaintiff claims, the charge sustains the doctrine, that although, as a whole, the knobs were finished equal to the contract standard, yet if a few of them were found deficient, though not essentially diminishing the value of the parcel, the defendants might lawfully reject the whole. We do not so understand the charge of the judge ; and we think the jury could not so have understood it.

On the contrary, the principle of the charge is, that if there was an essential deficiency in the parcel of 336 dozen knobs, and such as would and ought to be regarded as material to the whole, in such case, the defendants were not bound to accept and pay for either the whole or a part. We discover no objection to this, as a legal doctrine ; and therefore, do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted.