1 Miner v. Bradley, 22 Pick. 459. Miner v. Bradlee was fully approved in Costigan v. Hewkins, 22 Wis. 74 (1867). And see Manning v. Humphreys, 3 E. D. Smith, 218.
2 Johnson v. Johnson, 3 Bos. & Pul. 162; Miner v. Bradley, 22 Pick. 459.
3 Mayfield v. Wadsley, 3 B. & C. 361; 5 Dowl. & Ryl. 228; Wood v. Benson, 2 Cr. & J. 94. See also Kingdom v. Cox, 12 Jurist, 336; 2 C. B. 661.
1 Paige v. Ott, 5 Denio, 406. See also Davis v. Maxwell, 12 Met. 290; Sharpe v. Johnson, 60 Barb. 144 (1871).
2 Davis v. Maxwell, 12 Met. 286. See also Irving v. Thomas, 18 Me. 418; Stark v. Parker, 2 Pick. 267; Olmstead v. Beale, 19 Pick. 528; Miller v. Goddard, 34 Me. 102. But see contra, Britton v. Turner, 6 N. H. 481.
3 Waddington v. Oliver, 2 Bos. & Pul. N. R. 61; Symonds v. Carr, 1 Camp. 361; Walker v. Dixon, 2 Stark. 281; Kingdom v. Cox, 12 Jurist, 336; 2 C. B. 661; Franklin v. Miller, 4 Ad. & El. 605, 606; Oxendale v. Wetherell, 9 B. & C. 386; Withers v. Reynolds, 2 B. & Ad. 882. See Story on Sales, § 244, 245, and notes; Casamajor v. Strode, Cooper t. Brougham, 510; 8 Cond. Ch. 516; Symonds v. Carr, 1 Camp. 361; James v. Shore, 1 Stark. 426; Roots v. Dormer, 4 B. & Ad. 77; 1 Nev. & Mann.
§ 30. So, also, where the plaintiff purchased of the defendant an entire cargo of yellow and white corn on board of the defendant's schooner, and agreed to pay one sum per bushel for the yellow, and another sum for the white, the defendant warranting the corn to be of a certain quality,- and the purchaser paid the seller $1200 "on account of corn per schooner," but upon unlading, all of the corn did not correspond to the warranty, and the purchaser, after accepting a portion of it, refused to receive the remainder, which was inferior, and brought his action to recover the difference between the sum he had paid and the sum due on the corn he had taken, it was held, that as the contract was entire, the action could not be maintained; and that to entitle A. to recover he should have rescinded the contract by returning, or offering to return all the corn, or he should have accepted all, and brought his action on the warranty.1 In a later case,2 C. sold P. all the corn he had, supposed to be 600 bushels, the white at 65 cents, and the yellow at 63. He delivered the white and offered to deliver the yellow, but P. declined to accept it, although he had ground some of the white and mixed it with his own. The contract was held to be entire, and P. recovered of G. for the conversion of the white corn.
667. The case of Baldey v. Parker, 2 B. & C. 40, was not intended to define an entire contract, but what species of contract was referred to by the statute of frauds. The question which arose in the case was merely on the construction of the statute.
1 Clark v. Baker, 5 Met. 452. Mr. Justice Hubbard, after commenting upon the cases of Johnson v. Johnson, 3 Bos. & Pul. 162, and Miner v. Bradley, 22 Pick. 459, said, " While we fully approve these cases and feel that they support the plaintiff's position, so far as relates to contracts for different articles, where the consideration is divisible, or to cases where two distinct contracts are embraced in one settlement; still we think they neither go the length nor do they support the doctrine that the contract is not entire merely because the several articles are sold by weight or measure, and the value is ascertained by the price affixed to each pound or yard or foot of the quantities contracted for. On the other hand, we believe the legal principle, governing in such cases, does not depend, either solely or necessarily, on the nature of the articles which are the subject of the contract, or on the prices affixed to each, but upon the nature of the contract itself. If the contract is entire, if it is one bargain, then it matters not whether there is one or are many articles, - and though each may have an appropriate price. In the one case, the vendor might have been unwilling to sell one portion without selling the whole; in another, the buyer might be unwilling to take a part unless he could have the whole.
2 Thompson v. Conover, 1 Vroom, 329 (1863).
"The question, then, in the present case, resolves itself into this: Was there one bargain for the whole cargo, or were there two distinct contracts for the yellow and white corn, or was there a separate and independent bargain for each bushel of corn contracted for, in consequence of which the receipt of one or more bushels of the warranted quality imposed no duty upon the plaintiff to retain the residue ? And we are of opinion that the contract was an entire one. The bargain was not for 2000 or 3000 bushels of corn, but it was for the cargo of the schooner Shylock, be the quantity more or less; a cargo known to consist of two different kinds of corn; and the means taken to ascertain the amount to be paid were in the usual mode, by agreeing on the rate per bushel for the two kinds, and to take the whole. The schooner was hauled to the wharf of the plaintiff, and the cargo put under his control, and with all the possession that could be given before it was unladed. No further act was to be done by the vendor. No measurement of quantity was to precede the delivery. For the whole quantity was delivered, whether more or less, and the measure was needed only to ascertain the amount of the respective kinds, and thus to fix the sum to be paid. And in pursuance of this contract, $1200, on account of the entire cargo, was advanced to the defendant. No agreement was made that the party might reject, as it came from the vessel, such part as did not agree with the warranty, and pay only for what he actually retained; but the bargain was for the whole cargo at an agreed rate per bushel. And although the plaintiff refused to take the whole from the vessel, and in consequence the defendant was compelled, for the purpose of obtaining his vessel, either to receive a part back, or to unlade it himself for the plaintiff; yet in principle we consider the delivery the same to the plaintiff as though the whole had been unladed in bulk into his warehouse, and the measuring had taken place afterwards. There is no ground, on the evidence as reported, to maintain that there were two contracts for the distinct kinds of corn; for it does not appear but that the 1400 bushels, that were retained, consisted of a part of each. So that the plaintiff, to support his position, must contend, as he has contended, that the bargains in this case were separate bargains for each several bushels of a given quality, and for a distinct price. But this separation into parts so minute, of a contract of this nature, can never be admitted; for it might lead to the multiplication of suits indefinitely, in giving a distinct right of action for every distinct portion. As well might a man who sold a chest of tea by the pound, or a piece of cloth by the yard, or a piece of land by the foot or by the acre, contend that each pound, yard, foot, or acre was the subject of a distinct contract, and each the subject of a separate action. The cases of Waddington v. Oliver, 2 N. R. 61; Leggett v. Cooper, 2 Stark. 103; Oxendale v. Wetherell, 9 B. & C. 386; Baldey v. Parker, 2 B. & C. 37; Shaw v. Badger, 12 S. & R. 275; and Bowker v. Hoyt, 18 Pick. 555, support the view we take of this contract.