§ 31. Where, however, several different articles are bought at one time, it is often exceedingly difficult to determine whether the contract is entire or several. The cases are very contradictory upon this point, the same kind of contract being held to be entire at one time, and several at another. Thus, where a number of horses were set up at auction in separate lots, and the plaintiff bid off three of them, it was held by Lord Kenyon, that the contract was entire, and as title could only be made to one of them, that the plaintiff was not bound to keep it, and could recover the deposit money for all.1 So, also, where at an auction sale certain railway shares were sold in distinct lots of 100 shares each, and the defendant bought three of them at three distinct biddings, and a bill of parcels was given for 300 shares; it was held, that the jury were warranted in treating it as an entire contract, - the subsequent delivery and acceptance of the bill of parcels showing, that the parties treated the contract as an entire one.2
§ 32. But, on the other hand, a contrary rule has been held. Thus, where several distinct lots of growing crops were knocked down to a bidder, and his name marked against them in the catalogue of sale, it was held, that a distinct contract arose for each lot, and as each lot was under £20 in value, that the memorandum did not require a stamp.3 So, also, the same rule was held in another case, where several lots of grow-ing turnips were sold; and Mansfield, C. J., said, " The question is, whether the contract should be in writing as being for a sale of goods amounting to £10; there is no ground for that objection, for the contract for each stitch was a separate sale; for the same reason no stamp was necessary, because no one lot was worth £ 20."1 And also, Justices Heath and Chambre said, "As soon as the purchaser had bought the first lot, there was a complete contract, which could not be avoided by his buying another lot." In these two last case3 no bill of parcels seems to have been given. So, if A. covenants to deliver 300 barrels of flour, in lots of 100 barrels, and payment for each lot to be made on delivery, this is clearly a separate contract for each 100 barrels.2 But a contract for the sale of 700 cords of wood, at $5 per cord, the vendor to deliver as much as he could that winter, and the balance the next winter, the buyer to pay for each winter's delivery at the close of that season, is an entire contract for the whole, so that a delivery and acceptance of a part the first winter takes the whole out of the operation of the statute of frauds.3
"The plaintiff's redress was easy, - either to rescind the contract by returning all the corn purchased and suing for the money advanced; or by action upon his warranty, for the injury sustained by the delivery of an article inferior to that warranted."
But in this case, upon subsequent trial, the court admitted evidence to prove a usage in the port where the corn was sold, that when a cargo of corn, lying in a vessel, is sold in bulk, under a warranty of quality, the purchaser is at liberty to receive and retain as much of the corn as corresponds to the warranty, and to reject the rest. Clark v. Baker, 11 Met. 186. See post, § 35, 36.
1 Chambers v. Griffiths, 1 Esq. 151.
2 Franklyn v. Lamond, 4 C. B. 647.
3 Roots v. Lord Dormer, 4 B. & Ad. 77.
§ 33. In this diversity of cases, it is difficult to state any rule. But on the whole, the weight of opinion and the more reasonable rule would seem to be, that where there is a purchase of different articles, at different prices, at the same time, the contract would be several as to each article, unless the taking of the whole was rendered essential either by the nature of the subject-matter, or by the act of the parties. Where a bill of parcels is taken, and includes the articles bought, under one whole price, it would, if accepted, afford evidence of an intention by both parties to treat the contract as entire. And wherever the failure as to a part would materially defeat the objects of the contract, and would have affected the sale, had such failure been anticipated, the contract would be entire. This rule would found the interpretation of the contract on the intention of the parties, as manifested by their acts, and by the circumstances of the case.1 Of course, if two articles be bought at the same time under the agreement that one may be returned if it do not prove satisfactory, there would be no entirety of contract.2
1 Einmerson v. Heelis, 2 Taunt. 46. See also Johnson v. Johnson, 3 Bos. & Pul. 162; Mayfield v. Wadsley, 3 B. & C. 361; ante, § 29.
2 Sawyer v. Chicago, etc, Railway Co., 22 Wis. 403 (1868).
3 Gault v. Brown, 48 N. H. 183 (1868), following Cuff v. Penn, 1 M. & S. 21, disapproving Seymour v. Davis, 2 Sandf. 239, which also was not approved in McKnight v. Dunlop, 1 Seld. 537; and Boutwell v. O'Keefe, 32 Barb. 434.
§ 34. It follows, from these rules, that neither party can rescind an entire contract in part, and enforce it in part, and that each party is liable for the whole consideration, or for no part of it. If, therefore, the party advancing the consideration would bring an action against the other to recover it, he must rescind the contract totally.3 The contract may, however, be apportioned with the consent of the parties, whether it be expressed or implied, so that the excess of consideration advanced, may be recovered in an action for money had and received; and a consent by either party to treat the contract as several will be implied from the doing by him of any act inconsistent with the entirety of the contract. Thus, if the purchaser of a gross number of bales of cotton, accept a portion only of them without objection, and not in the course of receiving the whole, his acceptance will be considered as a waiver of his right to insist upon the entirety of the contract.4