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 was 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 him to pay the full agreed price; delivery of the later instalments would be a condition precedent to his obligation to pay.22 Even if the price of each instalment was payable separately, the buyer should have relief. It is true that his acceptance 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.2' 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 contract was not to be fully performed.24 If then the contract is divisible and a price, 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 unless the buyer can and does return what he has received.25 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 them, as distinguished from a quasi-contractual obligation, since the partial delivery was in effect a new offer.26 But if the deficient quantity of the goods was 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 by the buyer. Here accordingly, if the seller recovers payment for what he has furnished, it must be on principles of quasi-contract. 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 owing to the injustice of allowing the earlier to retain the benefit of goods without paying for them, by the weight of authority in the United States, the seller may recover the value of his goods.27 But in New York by a long series of decisions relief has been denied.28 The New York view has been accepted in a few other States,29 some of which at least would probably allow recovery if the seller's default was not wilful or morally culpable. 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.830 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 Uniform Sales Act.31
24 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 for 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."
25 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 Eable for the contract price; but the buyer, it was said, might recoup the damages that he suffered 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. 700 et seq.
26 See Georgia Pine Co. v. Central Lumber Co., 6 Ala. App. 211, 60 So. 512.
27 Richards v. Shaw, 67 I1L 222; Holden Mill v. Westmrelt, 67 Me.
446; Viles v. Kennebec Lumber Co., (Me. 1919), 106 Ail. 431; Rodman v. Guilford, 112 Mass. 405; Hedden v. Roberts, 134 Mass. 38, 45 Am. Rep. 276; Brown v. Morris, 83 N. Car. 257; Clark v. Moore, 3 Mich. 55; Shaw v. Badger, 12 S. & R. 275. See also Hartsell v. Turner, 196 Ala. 299, 71 So. 658; McCurry v. Purgason, 170 N. Car. 463,87 S. E. 244, Ann. Cas. 1918 A. 907. 28 Champlin v. Rowley, 13 Wend. 258, 18 Wend. 187; Mead v. Degolyer, 16 Wend. 632; Baker v. Higgins, 21 N. Y. 397; Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183; Kein v. Tup-per, 52 N. Y. 550; Nightingale v. Etseman, 121 N. Y. 288, 24 N. E. 475; Kelso v. Ellis, 224 N. Y. 528, 121 N. E. 364. If there are any facts 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. Will-son, 81 N. Y. 341, 37 Am. Rep. 503; Brady v. Cassidy, 145 N. Y. 171, 39 N. E. 814.
29 Haslack v. Mayers, 26 N. J. L. 284; Witherow v. Witherow, 16 Ohio St. 238; Petersburg Fire Brick Co. v. American Clay Mach. Co., 89 Ohio St. 365, 106 N. E. 33, L. R. A. 1915 B. 536. See also Miller v. Man-tik, 116 Md. 279, 281, 81 Atl. 797; Mark v. Stuart-Howland Co., 226 Mass. 35, 43, 115 N. E. 42. In Maryland, Massachusetts, New York, New Jersey and Ohio the Uniform Sales Act is now in force, and in any future dealing with the subject, the effect of the section quoted, infra, n. 31 should be taken into consideration.
30 See cases cited supra, n. 27.
31 Sec. 44. Delivery of wrong quantity. - (1) Where the seller delivers