National Knitting Co. v. Bouton & Germain Co.

141 Wis. 63 | Wis. | 1909

Wiuslow, C. J.

We think that the business world would' be astonished to learn that whenever an order for a bill of merchandise is accepted the contract thus made is entire, and requires delivery of every article before there can be recovery of any part of the purchase price. Such would be the practical effect of the defendant’s contention here, if it should be upheld. We cannot so hold. The question of entirety is a question of intention; severability of the subject matter and measurement of consideration by units may assist in determining, but do not of themselves necessarily determine, the-question.

In case of a contract naturally and accurately severable-(such as a contract for the sale of a bill of goods at certain prices for each article), courts incline to hold the contract severable, and to grant a recovery for that portion of the goods actually delivered, less damages for the nondelivery of any portion not delivered. Under all ordinary circumstances this-course will result in exact justice. The vendor will' receive pay for his goods which the vendee has retained, and the vendee will receive compensation for any damage which he has actually suffered.

If, however, it appears by express terms or by necessary implication from the terms of a contract that the intention of the parties was to make payment of the consideration depend upon delivery of all the articles, the contract will be held entire, though the consideration may be measured in units and' be actually severable. Goodwin v. Merrill, 13 Wis. 658; Shinn v. Bodine, 60 Pa. St. 182. Thus, when a contract required the delivery of 2,000 yards of crushed stone for the-purpose of building a bridge, it was held to be entire, notwithstanding the payment was to be at a certain rate -per yard. Prautsch v. Rasmussen, 133 Wis. 181, 113 N. W. 416. So contracts to tow a given quantity of logs at so much per thousand feet, and to carry 5,000 barrels of salt at so much per barrel, have been held entire, upon the idea that the terms of the contract, in the light of the surrounding facts, showed that the parties evidently intended to contract for one entire job, and only used the unit of measurement of the consideration for convenience and not as indicating any contemplation of severability. Boutin v. Lindsley, 84 Wis. 644, 54 N. W. 1017; Warehouse & B. S. Co. v. Galvin, 96 Wis. 523, 71 N. W. 804. See, also, Widman v. Gay, 104 Wis. 277, 80 N. W. 450.

The principle here decided is that contracts for the sale of goods like the present, which are naturally severable, will not be held entire contracts, in the absence of express or implied provision to that effect in the contract, or persuasive circumstances showing the intention of the parties to make it entire.

By the Court. — Judgment affirmed.