The plaintiff, hereinafter called the buyer, on March 5, 1941, entered into a contract with the defendant, hereinafter called the seller, for the purchase and sale of sixty thousand pounds of leather shoulders, to be delivered in instalments and to be paid for at the rate of thirty cents a pound on the fifteenth of each month for all goods delivered in the preceding month. The leather was to conform to a certain sample and to correspond to the description under which it was sold. It was, as both parties knew,
The seller made various deliveries under the contract but it made only two in June, 1941 — one on June 5, 1941, of four thousand one hundred fifty-three pounds and the other on June 12, 1941, of four thousand three hundred ninety pounds. - The buyer complained of the poor quality of these two shipments and the seller requested payment. No more leather was delivered by the seller and no more payments were made by the buyer. The buyer wrote the seller on July 24, 1941, that these shipments were of inferior quality and that he would hold the leather “for replacement”; and demanded that the seller ship the balance of the leather, amounting to eighty thousand pounds, within three days. The seller replied on the next day, declining to recognize any claim for breach of warranty in reference to the June deliveries, requesting payment, and notifying the buyer that it would send no more leather.
The buyer brought this action for damages on account of the poor quality of the leather shipped in June and for the nondelivery of the balance of the leather. The seller brought a cross action to recover the contract price of the June shipments, and, in his answer, the buyer set up a claim in recoupment on account of the inferior quality of the leather included in these shipments. The actions were tried together. In the action by the seller, the judge allowed the buyer $580.92 for breach of warranty and found for the seller for $2,135.75 with interest. Judgment in accordance with this finding has been entered. In the action by the buyer,
It is now settled by the judgment in the seller’s action that the leather shipped in June did not conform to the contract; that the inferior quality reduced its value about twenty per cent of the contract price; that the buyer, notwithstanding his somewhat equivocal conduct, had accepted the leather and that he has been compensated by the deduction made from the contract price for all loss sustained by reason of the inferior quality of the leather delivered in June. This narrows the controversy to a claim by the buyer for damages on account of the nondelivery of the balance of the leather covered by the contract.
The buyer could reject the June shipments even though he had accepted previous shipments under the contract, Orr Felt & Blanket Co. v. Sherwin Wool Co. 248 Mass. 553; Agoos Kid Co. Inc. v. Blumenthal Import Corp. 282 Mass. 1, or he could accept them, even though they did not conform to the quality required by the contract, and become liable to pay for them. Bouton v. Reed, 13 Gray, 530. Boston Blower Co. v. Brown, 149 Mass. 421. Wiley v. Athol, 150 Mass. 426. Babcock Coal Co. v. Boston, 303 Mass. 518. The parties did not agree upon the amount owed by the buyer and this sum was not determined until it was fixed by the judgment entered in the seller’s case. The buyer was then found to have owed a substantial amount. There is no evidence or contention that the buyer ever offered to pay anything for the goods. The question is, whether the failure of the buyer to pay on July 15, 1941, the time fixed by the contract for payment of goods delivered in the preceding month, was a breach of the contract so material as to justify the seller "in refusing to proceed further.” G. L. (Ter. Ed.) c. 106, § 34 (2).
Payment for successive shipments at the times fixed in a divisible contract for the sale of goods to be delivered in instalments is ordinarily an important and substantial requirement of the contract, and whether the failure to pay in accordance therewith constitutes a breach of such character and extent as to entitle the seller to consider the en
Under our common law and under the sales act, G. L. (Ter. Ed.) c. 106, § 58 (1) (a) (b), a buyer may accept goods inferior in quality to that described in the contract and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the„ price, or he may bring an action against the seller to recover damages for the breach. Dorr v. Fisher, 1 Cush. 271. Gilmore v. Williams, 162 Mass. 351. Cox v. Wiley, 183 Mass. 410. Borden v. Fine, 212 Mass. 425. Learned v. Hamburger, 245 Mass. 461. The remedy given by G. L. (Ter. Ed.) c. 106, § 58, for breach of warranty has been held to apply to a buyer who has accepted an instalment delivery of goods that did not correspond to the contract. “Where there is a breach of warranty, express or implied, of the quality of goods delivered in instalments the buyer may elect to accept and receive them as conforming to the contract, or he may receive them and set up the breach of warranty as a defence in whole or in part to the seller’s claim for compensation; or he may return or offer to return the goods to the seller in substantially as good condition as they were at the time
The buyer has been granted only one remedy for the seller’s breach of warranty. G. L. (Ter. Ed.) c. 106, § 58 (2). The judge having allowed his claim in recoupment properly found against him on that part of his claim in the buyer’s action that sought to recover damages for the same breach of warranty. Hebert v. Dewey, 191 Mass. 403. Mark v. Stuart-Howland Co. 226 Mass. 35. Poorvu v. Weisberg, 286 Mass. 526. The buyer in his action besides seeking to recover damages for breach of warranty also sought to recover damages for the nondelivery of the balance of the goods by the seller. The seller contends that the buyer, having been allowed to recoup for breach of warranty, is barred by said § 58 (2) from recovering damages for failure of the seller to deliver the balance of the leather. The seller misconstrues the scope of § 58 (2). Section 58 (1) provides four remedies,
So ordered.