EQUITABLE TRADING CO.
STONEMAN ET AL.
Appeal from City Court of Albany.
Action by the Equitable Trading Company against William J. Stoneman and another. Judgment for plaintiff, and defendants appeal. Affirmed.
[115 N.Y.S. 286] Frost, Daring & Warner (J. S. Frost, of counsel), for appellants.
Walter E. Ward, for respondent.
Argued before SMITH, P. J. and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
Plaintiff recovered a judgment for the purchase price of varnish sold and delivered to defendants. The defense is that the contract of purchase was an entire one, and not severable, and that the plaintiff failed to deliver the full amount purchased. The order was for 120 gallons of Supremis varnish at $2.50 per gallon, 12 gallons of Navalite at $4 per gallon, and 12 gallons of Architectural Coach at $2 per gallon, less discount. The delivery was of 21 gallons of Supremis and 12 gallons of Navalite, and plaintiff has recovered for the quantity so delivered.
Before considering the facts it may be well to have in mind the legal principles applicable to the question of a divisibility of a contract. In Parsons on Contracts (8th Ed.) p. 624, it is said:
" No precise rule can be given by which this question in a given case may be settled. Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract. If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable; and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire."
In Clark on Contracts (2d Ed.) p. 453, it is said:
" The question of divisibility is difficult, and this difficulty has resulted in a direct conflict in the decisions. The queston is one of construction. ‘ The contract may be entire or severable, according to the circumstances of each particular case,’ it has been said in speaking of contracts of sale, ‘ and the criterion is to be found in the question whether the whole quantity-all the things as a whole-is of the essence of the contract. If it appear that the purpose was to take the whole or none, then the contract would be entire; otherwise, it would be severable.’ ***‘ 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 severable 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.’ This rule makes the interpretation of the contract depend on the intention of the parties as manifested by their acts, and by the circumstances of each particular case."
Let us now consider the facts in the light of the foregoing principles. Defendants are retail dealers in Albany. Plaintiff is a jobber in New York. All the negotiations were by letter. On November 20, 1907, plaintiff wrote the defendants, saying they were able to offer the Chicago Varnish Company's varnishes at less than the usual cost, owing to the discontinuance of the house-furnishing department [115 N.Y.S. 287] of one of the department stores which plaintiff represented, and concluding:
" Let us hear from you what items of the Chicago Varnish Company's products you want, as the goods are going fast."
Defendants answered that they could give an order if the prices were right, and asking for plaintiff's best offer. To this on November 22d plaintiff wrote saying:
" We have your favor of November 21st, in which you inquire our confidential price on the Chicago Varnish Co.'s products. [Then follow prices.] Our cash terms are 6 per cent., ten days, f. o. b. New York. Inasmuch as these goods are selling fast with us, and as our supply is for the time being only, we suggest that you place an ...