212 Mass. 195 | Mass. | 1912
We see no ground on which the exceptions can be sustained. The ruling asked for by the defendant could not have been given; and that is the only question presented.
The defendant’s contract was an entire one for the purchase of three cars of potatoes; and it was not severed by the fact that the plaintiff shipped them at different times and drew a separate draft for the alleged contents of each car at the agreed price. We assume without deciding that upon discovering the shortage which he claimed in the load of the first car he might have declined to accept it and rescinded his contract. But he chose not to do this. Instead of doing so he accepted that car load and sold it to a customer of his own, thus putting it beyond his power to return it to the plaintiff. He could not then rescind the contract by reason of the shortage. He must seek his remedy under the contract by way of set-off or recoupment, or by an independent action. Morse v. Brackett, 98 Mass. 205. Mansfield v. Trigg, 113 Mass. 350. Barrie v. Earle, 143 Mass. 1. Obery v. Lander, 179 Mass. 125, 130. Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, 476.
Exceptions overruled.
