But in case the seller's obligation is either by its terms or by the buyer's permission performable in instalments it may happen that the buyer, not supposing the seller is going to be guilty of a breach of contract, accepts one or more instalments, assuming that the rest are to follow. If the buyer had agreed to pay a lump price after all the instalments had been delivered, it is obvious that the acceptance of the early instalments could not bind Aim to pay the agreed price. Delivery of the later instalments would be a condition precedent to the buyer's obligation.57 Even if the price of each instalment was payable separately, the buyer should have relief. It is true that his actracted for, it would seem to follow that in any event the damage that the defendant might normally expect would follow from a breach of his contract should be recovered even though the plaintiff actually suffered less damage.
54 Norrington v. Wright, 115 U. S. 188, 6 S.Ct. 12, 29 L. Ed. 366; Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 30 L. Ed 920; Churchill v. Hoi-too, 38 Minn. 519, 38 N. W. 611; Hill 9. Heller, 27 Hun, 416; Inman v.
Elk Cotton Mills, 116 Tenn. 141, 92 S. W. 760.
55 Norrington v. Wright, 115 U. S. 188, 205, 6 S. Ct. 12, 29 L. Ed. 366; Bamberger v. Burrows, 145 Iowa, 441, 124 N. W. 333.
56 Morgan v. Gath, 3 H. & C. 748; Avery v. Willson, 81 N. Y. 341, 37 Am. Rep. 503.
57 Oxendale v. Wetherell, & B. A C. 386, 387; Waddington v. Oliver, 2 B. A P. (N. 8.) 61; Colonial Ins. Co. v. Adelaide Ins. Co., 12 A. C. 128, 138, 140.
ceptance of a part indicates an assent to take title to the goods offered, and to pay for them at the contract rate, but this assent was given in the justifiable expectation of receiving an additional quantity of goods. The buyer may, therefore, on finding out that the contract is not going to be fully performed by the seller, return the goods in his possession and refuse to pay the price, if not already paid; and, if already paid, recover it back.58 If, however, the buyer when he accepts the partial delivery is aware that the seller proposes to make no other delivery, it is clear that the buyer should pay for the goods; and, similarly, if he retains them after he knows that no future delivery is to be made, even though at the time the partial delivery was accepted he had no reason to suppose the rest of the contract was not to be performed. If the contract is divisible and a price is, therefore, due according to the terms of the contract for what has been delivered and accepted, there can be no doubt of the seller's right to recover the price fixed by the contract.59