obligation of the buyer? The answer to this question must depend largely upon the circumstances of each case. If the buyer is led to receive part, relying upon the seller's duty or promise to make good the deficiency, and this is not done, the buyer, having done nothing to estop himself, may then reject the part performance. If the seller delivers but part of the goods, and the buyer acquiesces in this and accepts and promises to pay for the part so delivered, the buyer will be deemed to have waived full performance and may be held liable to pay for the part received. In such a case he would not be entitled to damages for the non-delivery of the residue, unless his acceptance of the part delivered was conditioned upon such right.

§ 1162. Retention of part delivered - Implied promise to pay therefor. But if there be a part delivery which the buyer retains without any other acquiescence or waiver or

1 See Polhemus v. Heiman, 45 Cal. 573; Bowker v. Hoyt, 18 Pick. (Mass.) 555; Nightingale v. Eiseman, 121 N. Y. 288, 24 N. E. P. 475; Oxendale v. Wetherell, 9 B. & C. 386.

2 Thus in Avery v. Wilson (1880), 81 N. Y. 341,37 Am. R. 503, where the contract was for the delivery at one time and in one lot of a quantity of glass, and a part of it only was delivered, it was said: "While the defendants were not bound to accept a delivery of a portion of the boxes of glass, and had a right to reject or retain the same as they saw fit, yet if they elected to receive the part delivered, appropriated the same to their own use, and by their acts evinced that they waived this condition, they be came liable to pay for what was actually delivered. This rule is established in numerous reported cases, and the question of waiver is frequently one of fact to be determined by the circumstances and the evidence. Vanderbilt v. Eagle Iron

Works, 25 Wend. (N. Y.) 665; Corning v. Colt, 5 Wend. 253; Krom v. Levy, 3 N. Y. Sup. 704, 6 id. 253; Flanagan v. Demarest, 3 Robt. 173; Normington v. Cook, 2 N. Y. Sup. 423; Welch v. Moffatt, 1 id. 575." The court distinguish the cases of this kind, where there is a failure to deliver the whole of a single lot agreed upon, and the cases, hereafter to be considered, of a failure to deliver part of a number of quantities to be delivered at successive intervals. (To same effect: Dalzell v. Fahys Watch Co., 138 N. Y. 285, 33 N. E. R. 1071: Brady v. Cassidy, 145 N. Y. 171, 39 N. E. R. 814.) See also, that the discrepancy may be waived, expressly or by conduct, in which case the buyer must pay for the part so accepted, Churchill v. Holton, 38 Minn. 519, 38 N. W. R. 611; Marland v. Stanwood, 101 Mass. 470; Morgan v. Gath (1865), 3 H. & C. 748; Defenbaugh v. Weaver (1877), 87 Ill. 132; Downs v. Marsh (1860), 29 Conn. 409.

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promise to pay than might be inferred from the mere retention, may the seller then recover for the part so retained? It is held in many of the American cases that he cannot. The contract being entire, and the delivery of the whole being a condition precedent to the buyer's duty to pay, the seller can maintain no action on the contract which he himself has failed to perform, and the law will not imply a new contract to relieve him from the consequences of his own default. Other cases, however, proceeding upon the principles laid down in the great case of Britton v. Turner,2 hold that the buyer's voluntary retention of the part delivered raises an implied promise to pay, not necessarily the contract price, but the reasonable value of the part so delivered after deducting the damages which the buyer has sustained by reason of not receiving the entire amount. Reason and the weight of authority unite in sustaining this rule.3

§ 1163. formance.

Severable contract-Recovery for part perWhere, however, the contract is not entire but severable, other considerations apply. In determining whether

1 Champlin v. Rowley, 13 Wend. (N. Y.) 258; s. c., 18 id. 187; Mead v. Degolyer, 16 Wend. 632; Baker v. Higgins, 21 N. Y. 397; Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183; Nightingale v. Eiseman, 121 N. Y. 288, 24 N. E. R. 475; Kein v. Tupper, 52 N. Y. 550 [but see Avery v. Wilson, 81 N. Y. 341, 37 Am. R. 503]; Witherow v. Witherow, 16 Ohio, 238; Haslack v. Mayers, 26 N. J. L. 284.

26 N. H. 481, 26 Am. Dec. 713; Mechem's Cases on Damages. As a matter of pleading, Holden Steam Mill v. Westervelt, 67 Me. 446, holds more strongly for assent by the buyer to the part delivery than many of the cases in the following note.

3 In Bowker v. Hoyt, 18 Pick. (Mass.) 555, it was held that if the vendee of a specific quantity of goods sold

under an entire contract receive a part thereof, and retain it after the vendor has refused to deliver the residue, this is a severance of the entirety of the contract, and he becomes liable to the vendor for the price of such part; but he may reduce the vendor's claim by showing that he has sustained damage by the vendor's failure to fulfill his contract. To the same effect: Richards v. Shaw, 67 Ill. 222; Clark v. Moore, 3 Mich. 55; Shaw v. Badger, 12 Serg. & R. (Pa.) 275; Hedden v. Roberts, 134 Mass. 38, 45 Am. R. 276; Rodman v. Guilford, 112 Mass. 405; Flanders v. Putney (1878', 58 N. H. 358; Harralson v. Stein (1873), 50 Ala. 347; Oxendale v. Wetherell, 9 B. & C. 386; Shipton v. Casson, 5 B. & C. 378; Bragg v. Cole, 6 J. B. Moore, 114.

it is severable or entire, the rule laid down by Mr. Parsons1 has been frequently approved by the courts: "If the part to be performed by one party consists of several and distinct 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. . But if the consideration to be paid is single and entire the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items." If, under this rule, the contract is severable, the seller may recover in any event for the part delivered, leaving the other to his remedy by recoupment or action for the damages sustained by non-delivery of the residue.2

$ 1164. The rule stated by Mr. Parsons is simply a recognition of the fact that there may be contracts in which, "although the agreement is entire, the performance is severable," or, as it has been otherwise expressed, that there may be a contract which may be "one and entire in its origin, and yet, looking to the performance of different things at different times, it may be divisible in its operation."

§ 1165. Severable contract - Failure as to part.Attention has been given in a preceding section' to the effect of a breach in the performance of one of the instalments of an entire contract. Where, however, the contract is clearly severable, consisting of several entirely distinct and independent parts, it is held that the failure of one party to perform one part does not justify the other in refusing to accept performance of the residue; nor does the failure of the buyer to re

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1 Parsons on Contracts, vol. II, pp. *517-*520 (pp. 648-651 of 7th ed.). 2 Lucesco Oil Co. v. Brewer, 66 Pa. St. 351; Rugg v. Moore, 110 Pa. St. 236, 1 Atl. R. 320; Gill v. Lumber Co., 151 Pa. St. 534, 25 Atl. R. 120; Morgan v. McKee (1874), 77 Pa. St. 228; Gomer v. McPhee, 2 Colo. App. 287, 31 Pac. R. 119; Herzog v. Purdy

(1897), 119 Cal. 99, 51 Pac. R. 27; Ritchie v. Atkinson, 10 East, 295.

See Barrie v. Earle, 143 Mass. 1, 58 Am. R. 126, 8 N. E. R. 639. 4 See ante, § 1140 et seq.

5 Morgan v. McKee (1874), 77 Pa. St. 228; Morris v. Wibaux (1895), 159 Ill. 627, 43 N. E. R. 837.

ceive a part relieve the seller of his duty to tender performance of the residue when such performance is due.1

§ 1166. Quantity indefinite "More or less " "About.”—Precision as to the quantity may be sought to be avoided by the use of qualifying limiting expressions, such as say, about, say about, more or less, and the like. The effect of such expressions must depend largely upon the circumstances of each case. In a leading case in the supreme court of the United States the following rules were laid down as an aid in the determination of the question:

81167. - 1. Where a contract is made to sell or furnish certain goods identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, or all that may be manufactured by the vendor in a certain establishment, or that may be shipped by his agent or correspondent in certain vessels, and the quantity is named with the qualification of "about," or "more or less," or words of like import, the contract applies to the specific lot; and the naming of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount, in reference to which good faith is all that is required of the party making it.3

1 Herzog v. Purdy (1897), 119 Cal. weighing it proves to contain but 99, 51 Pac. R. 27. forty-four tons. McLay v. Perry, 44 So where the contract was for the sale of a definite pile of guano, "estimated to be two hundred and fifty-three and one-third tons, more or less," at a fixed price per ton, and the contract stipulated that the excess, if any, should be paid for at that price, or the deficiency, if any, allowed for at that price, it was held that the buyer was bound to pay the contract price for the whole pile though it appeared on weighing to contain seven hundred and two and seven-tenths tons, no fraud appearing. Navassa Guano

2 Brawley v. United States (1877), L. T. (N. S.) 152. 96 U. S. 168, 24 L. ed. 622.

3 Where the contract was for the transportation of certain goods "supposed to amount to about three thousand seven hundred barrels," it was held that the contract was performed though it proved that there were but three thousand one hundred and five barrels. Robinson v. Noble, 8 Pet. (U. S.) 181. A contract for the sale of an agreed pile of old iron estimated at "about one hundred and fifty tons" is satisfied by the delivery of that pile, though on

§ 1168. 2. When no such independent circumstances are referred to, and the engagement is to furnish goods of a certain quality or character to a certain amount, the quantity specified is material and governs the contract. The addition of the qualifying words, "about," "more or less," and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure or weight.1