1 Taylor v. Caldwell, 3 B. & S. 826. See also The Tornado, 108 U. 8. 342, 2 S. Ct. 746, 27 L. Ed. 747; Arthur v. Blackman, 63 Fed. 636; Fresno Milling Co. v. Fresno C. & I. Co., 126 Cal. 640, 59 Pac. 140; School District v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Terry v. Bissell, 26 Conn. 23; Walker v. Tucker, 70 11I. 527; Price v. Pepper, 13 Bush, 42; Pinkham v. Libbey, 93 Me. 575, 45 Atl. 823, 49 L. R. A. 693; Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65; Thomas v. Knowles, 128 Mass. 22; Gilbert & Co. v. Butler, 146 Mass. 82, 15 N. E. 76; Goldman v. Rosenberg,
116 N. Y. 78, 22 N. E. 259; Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215; Young v. Leary, 135 N. Y. 569, 32 N. E. 607; Dolan v. Rodgers, 149 N. Y. 489, 44 N. E. 167; Lovering v. Coal Co., 54 Pa. St. 291; Huguenin v. Courtenay, 21 S. C. 403, 53 Am. Rep. 688; McMillan v. Fox, 90 Wis. 173,62 N. W. 1052; Board of Education v. Townsend, 63 Ohio St. 514, 59 N. E. 223, 52 L. R. A. 868.
2 See supra, Sec.Sec. 675, 838.
3 Strickland v. Turner, 7 Ex. 206.
4 This view is suggested by Benjamin, Sale (5th Eng. ed.), 139.
5 See supra, Sec.Sec. 20, 94, 95.
to the case of deterioration or partial destruction of the goods unknown to the parties at the time they entered into a sale. The principles which govern the case are, moreover, not so simple as those which relate to total destruction. Several cases may be supposed, the simplest of which is that a portion of the goods is destroyed. In such a case it is impossible for the buyer to fulfil his whole bargain; and impossibility, without his fault, should excuse him, as in case of total destruction. The buyer also should be excused from liability to pay the price for the same reasons as those given in the preceding section. It may be, however, that the buyer wishes to take the goods that remain, in spite of the destruction of the remainder. If he so desires, he should have the right.6 Here it becomes important to observe that mutual mistake as to the existence of the subject-matter does not necessarily make the transaction void, but entitles the parties only to such relief as may be equitable. So, likewise, impossibility can excuse the seller no further than the impossibility in fact exists. The only doubt is, upon what terms the buyer may proceed. If a separate price was originally agreed upon for the goods which now remain, there seems no reason why the buyer should not be entitled to them upon paying this price, and so the Sales Act provides. To be sure the seller never agreed to sell those goods separately, though he agreed on a divisible price, but as the remaining goods which were the subject of the bargain are destroyed, the seller cannot well be put in a worse position than contemplated by the bargain if he is obliged to give up the remainder; he is not left with goods on his hands undisposed of. The buyer, however, even though the contract was divisible is not bound to take the goods unless he wishes. A part of the goods may not serve his purpose. Therefore, he has an option to take the goods or reject them. If the price for the goods which remain is not fixed by the contract, while the buyer may also claim the goods, he can claim them only according to the terms of the contract. The French Civil Code allows him to take them at a valuation,7 but this seems to force upon the seller a bargain which he did not make.
6 See Soott v. Littledale, 8 E. & B. 815, stated infra, n. 13.
7 Code Civil, Art. 1601.