It may, however, be supposed that the contract was entire and that no part of the price was due until full performance by the seller. Even in such a case, if the buyer accepted a portion of the goods knowing that no more were to be delivered, there is no difficulty in finding a real contract to pay for thefca, as distinguished from a quasi-contractual obligation, since the partial delivery was in effect a new offer.60 But if the deficient quantity of the goods were delivered under such circumstances that the buyer was not aware that full delivery would not be made, no new contract can be said to have been agreed to but the buyer, it was said, might recoup the damages that he Buffered from the seller's failure completely to fulfil his contract. As to the question of the seller's liability where incomplete performance has been accepted, see supra, Sec.Sec. 701 et sag.
60See Georgia Pine Lumber Co. v. Central Lumber Co., 6 Ala. App. 211, 60 So. 512.
58 Benjamin, Sale (5th Eng. ed.), 697; Polhemus v. Heiman, 45 Cal. 573; Bamberger v. Burrows, 145 la. 441, 124 N. W. 333. But see Bigelow v. Barnes, 121 Minn. 148, 140 N. W. 1032.
59 Bowker v. Hoyt, 18 Pick. 555. The court held in this case that retention of the goods after knowledge of the seller's default made the buyer liable for the contract price; by the buyer. Here accordingly, if the seller recovers payment for what he has furnished, it must be on principles of gua8i-con-tract. It is true that it has often been laid down that a contract will not be implied by the law in favor of one who is in default under an express contract, but the injustice of allowing the seller to retain the benefit of goods without paying for them is so clear that even in England, where quasi-contractual rights are generally most strictly limited, recovery has been allowed,61 and the weight of authority in this country strongly supports this view;62 but in New York by a long series of decisions the seller is denied relief .63 The New York view has been accepted in a few other States.64 The measure of damages in such an action is not necessarily the contract price even if the contract fixes a price by number, weight, or measure. If the buyer retained the goods, having it in his power to redeliver them after he knew that the seller was going to make default in delivering the whole amount, it seems just that the buyer should pay the contract price. This result seems supported by the decisions which hold the buyer liable under such circumstances. It is commonly said that the retention operates as a severance of the contract.65 The buyer, however, may in good faith have dealt with the goods in such a way as to make it impossible for him to return them, and yet the value of the portion received may not be so large a proportion of the total price as the goods are of the total amount of goods which should have been delivered. As the buyer's obligation is imposed by law, the extent of it should be restricted to the benefit which the defendant has received. The seller, being a wrongdoer in failing to deliver the whole amount, can certainly claim no more than this; and so it is provided in the section of the Sales Act under consideration. Though it has been seen the buyer may accept the smaller quantity offered him, he has, it seems, no right to accept a portion only of this amount. If he does so, his action amounts to a new offer to the seller to purchase the partial quantity.
61 Oxendale v. Wetherell, 9 B. & C. 386. In this case the plaintiff delivered 130 bushels of wheat and though he was bound to- deliver 250 bushels and failed to deliver the residue, the court held that after the expiration of the time within which delivery should by the contract have been made, recovery could be had fa the 130 bushels. Parke, J., said: "If the buyer retained the part delivered after the seller had failed in performing his contract, the latter may recover the value of the goods which he so delivered."
62 Richards v. Shaw, 67 111. 222; Hidden Mill v. Westervelt, 67 Me. 446; Rodman v. Guilford, 112 Mass. 406; Hedden p. Roberts, 134 Mass. 38, 45 Am. Rep. 276; Clark v. Moore,
3 Mich. 55; Shaw v. Badger, 12 S.
63 Champlin v. Rowley, 13 Wend. 258, 18 Wend. 187; Mead v. Degolyer, 16 Wend. 632; Baker v. Higgind, 21 N. Y. 387; Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183; Kein v. Tupper, 52 N. Y. 550; Nightingale v. Eiseman, 121 N. Y. 288, 24 N. E. 475. U there are any facte tending to show waiver or prevention of full performance, the New York court is quick to seise upon these facts as a ground of liability. Avery v. Willson, 81 N. Y. 341, 37 Am. Rep. 503; Brady v. Cassicky, 145 N. Y. 171, 39 N. E. 814.
64 Haslack v. Mayers, 26 N. J. L. 284; Witherow v. Witherow, 16 Ohio St. 238; Petersburg Fire Brick Co. v. American Clay Maoh. Co., 89 Ohio St. 365, 106 N. E. 33, L. R A. 1915. B. 536.
65 See cases cited supra, n. 61, 62.