
    *Samuel P. Witherow v. William Witherow.
    "While a special eontraet remains open and subsisting, it is obligatory and binding upon the parties; and if suit is brought upon the same, it must be a special action upon the contract.
    A vendor of personal property,—the property to be delivered within a specified period, and payment to bo made for the same upon a day certain, after the period within which delivery was to have been made,—failing to deliver the entire property within the time specified, can not recover in indebitatus assumpsit for any part delivered, unless there is a sufficient excuse for the non-delivery of the residue.
    It is the business of the court to enforce contracts, not to violate, or encourage the violation of them.
    This is a writ of error, reserved in Butler county.
    The original action was commenced by the defendant in error before a justice of the peace, and appealed to the court of common pleas. In the latter court the defendant in error declared against the plaintiff in assumpsit for goods sold, money had and received, etc.
    
      To the declaration the then defendant filed a plea of the general issue, and gave notice of special matter relied on by way of defense.
    The ease was tried by a jury, and a verdict returned in favor of the then plaintiff, upon which judgment was entered.
    On the trial a bill of exceptions was tendered by the counsel for plaintiff in error, and allowed by the court. From this bill of exceptions the following facts appear: To sustain the issue on his part, the defendant in error proved the delivery of 21G| bushels of corn in the barn of the defendant, in the month of December, 1843, which corn was received by defendant, and' that said corn was worth, or delivered at, fifteen cents per bushel. The plaintiff, in error to sustain the issue on his part, offered evidence tending to *prove a special contract, made and entered into between the plaintiff and defendant, in the month of November, 1843, under which the defendant in error sold to the plaintiff, the whole undivided half of the corn in a certain twenty-acre field. The same, at the time, was supposed by them to amount to 500 bushels or upward ; the corn, to bo delivered by the defendant in error in the barn of the plaintiff during the fall and ensuing winter, and that in consideration thereof, plaintiff in error agreed to pay fifteen cents per bushel, to be paid March 1, 1844. That the corn delivered was part of the corn aforesaid. Some other evidence, tending to prove a subsequent understanding between the parties upon the subject of said contract, was also given ; and, the evidence being closed, the counsel for the then defendant moved the court to instruct the jury “that if from the evidence they believed there was a special contract for the delivery of the whole of the undivided half of said field of corn, during the fall and winter, and that payment thereof was not to be made until the first day of March next, after the date' of said contract, and that said special contract was still open and subsisting, a recovery could not be had under the declaration of the plaintiff.”
    This instruction was not given, but the court instructed the jury “that if they were satisfied from the evidence that a part of said corn had been delivered, and received and accepted, and kept by the defendant, and that after the plaintiff had failed to deliver the balance, no notice had been given by him to the plaintiff to take back the corn so delivered, that the plaintiff might recover for the coi’n so delivered, and that the defendant might reduce the amount of the recovery of the plaintiff for the corn delivered, by showing the incomplete performance of the contract, and the amount of damages sustained thereby.”
    The errors assigned are:
    1. That the court erred in refusing to charge the jury as requested by the plaintiff in error.
    *2. That the court erred in the charge actually given to the jury.
    3. The general error that judgment was given for the plaintiff when it should have been given for the defendant.
    Thomas Milliken, for plaintiff in error.
    Campbell, Bebb, Swan & Andrews, for defendant in error.
   Hitchcock, J.

The amount in controversy in this case is not of much consequence, but the principle involved is one upon which there is groat contrariety of opinion, as well as many contradictory decisions. Under such circumstances, it is not to be expected that any determination wo can make will be satisfactory to all. It can hardly be entirely satisfactory to ourselves.

The true question presented is this, whether where one man undertakes to sell and deliver to another, property which is to be delivered in parcels, from time to time, within a specified period,— —payment to bo made on a day certain, subsequent to that period, and delivers but a part of the property, he can avoid his contract, that contract still subsisting, and recover against the vendee the value of that portion of the property which he has delivered, in an action of indebitatus assumpsit. Or, in other words, whether in case of'such a contract, the party who neglects and refuses to perform the contract on his part can, notwithstanding such neglect and refusal, recover from the other party to the extent that property has been delivered.

No such doctrine has as yet been recognized by this court as a sound principle of law, though it seems to have been acted upon by the court of common pleas, in the case under consideration. This court have always held that where there was an open subsisting contract for the performance of labor or the delivery of goods, if an action is brought, it must be upon the contract itself. If the oontract has been ^performed, then an action may be brought upon the contract, or an action of indebitatus assumpsit for the work and labor, or for goods sold and delivered, as the case may be. So in a contract like the one now under consideration, if there were any matter which would evince that the vendee had waived full performance, or that the vendor had been prevented, by inevitable accident, from full performance, he might recover for the corn actually delivered. But this court has never gone so far as to say that where there is a special contract for the performance of labor, for the delivery of goods, or upon any other subject, the party violating and refusing fully to comply with his contract, can have an action at law in any form, to recover a pro rata compensation so far as he has performed. . It has seemed, and still seems to the court, that the establishment of such a principle would have a tendency to encourage the violation of contracts—to diminish, in the minds of contracting parties, a sense of the obligation which rests upon them to perform their agreements. Any principle which would have such an effect ought not to be recognized as sound law. It is the duty of courts to enforce the performance of contracts—not to encourage their violation.

The same principle as to the form of action, where there is a subsisting special contract, seems to be entertained in the Supreme Coui’t of the United States. In the case of Chesapeake and Ohio Canal Company v. Knapp and others, 9 Peters, 565, that court say, “there can be no doubt, that where the special contract remains open, the plaintiff’s remedy is upon the contract, and he must set it forth specially in his declaration ; but if the contract has been put an end to, the action for money had and received lies to recover any payment that has boon made under it.”

I know that action of assumpsit is said to be an equitable action, According to Lord Mansfield, an action of indebitatus assumpsit is as broad as a bill in equity. But it seems to me that it would be a strange reason for the interference of a court of equity, that a complainant had ^neglected or refused to perform a contract in respect to which he seeks some kind of relief. • Courts of equity will grant relief in cases of fraud, accident, or mistake, but never, I apprehend, where the culpable negligence of a complainant is relied upon for relief. Especially where the only apparent excuse for such negligence is, that the complainant did not do what he had agreed to do, merely because he did not choose to do it. And still this is precisely the hypothetical case before the court. The court of common picas held that in such a case the negligent party might have relief in a court of law.

We are aware that there are authorities which sustain the ruling of the court of common pleas; and perhaps a majority of the modern cases go to sustain the ruling of that court. These cases are referred to by the counsel of the defendant in error. The leading one is the case of Oxendoll v. Witheral, 17 Eng. Com. L. 401. The principle advanced in that case has been adopted by the courts of Pennsylvania, Massachusetts, and New Hampshire—and perhaps by the courts of some of the other states in the Union. But the case of Oxendoll v. Witheral has been expressly overruled in the State of New York, both by the Supreme Court and the Court of Errors. In the case of Champlin v. Rowley, 18 Wend., the chancellor, in speaking of this case, says, “this decision, carried to the extent it was in that case, can not be considered as good law anywhere, for it is not founded upon equitable principle, but is contrary not only to justice, but to common sense. The only way I can account for it is upon the supposition that the facts of the case are not properly stated in the report; or that the injustice of requiring the party, who was not in fault, to be at the expense of returning bulky articles of this description, or even of seeking him for the purpose of making an offer to return them, to protect himself from an action, was not presented for the consideration of the court. Again, in that case, as in this, the contract was not to deliver the whole quantity at one time, but to deliver the whole within a ^specified period. Neither was there any agreement, either express or implied, that the defendant should not be permitted to sell or use the several parcels, delivered from time to time, until the last period for completing the coutract had actually expired.”

In the case now -before this court, the contract assumed by th& plaintiff in error (whether the assumption was correct was a-question for the jury) was that the defendant in error agreed to deliver to the plaintiff the one-half of the corn which had been grown on a certain parcel of ground, the delivery to be made during the fall of 1843. and the ensuing winter, for which the plaintiff was to pay, on the 1st day of March next ensuing, at the rate of fifteen cents per bushel. The contract is still open and subsisting. Thereby the delivery of the corn—of the entire crop— was a condition precedent. Had the contract been such that the whole quantity was to be delivered at one and the same time, a delivery of a part at the time, and the acceptance of that part by the vendee, might have been construed as a waiver of the delivery of the entire quantity. But it was not so. By the contract the corn was to be delivered during the fall and winter,—to bo delivered in different parcels and at different times, and it was to be so received.

The court of common pleas seem to have based the right of the defendant in error to recover upon the fact that there had been no offer on the part of the plaintiff in error to return that portion of the corn delivered; and this is the doctrine established in the case of Oxendoll v. Witheral. But would it have been reason-

able, under the terms of this contract, to require of the vendee to keep on hand the portion of the corn delivered until it should be ascertained whether the vendor would comply with his contract by the delivery of the remainder ? Such could never have been the intention of the parties. " Such is not the meaning of the contract. It must have been understood that the corn delivered, upon the delivery, became the property of the vendee to be used or disposed of as he might think proper.

*The court directed the jury#that if the vendee had sustained damage, by the non-delivery of the corn, the amount of that damage might be deducted from the value of the part delivered. Assuming the previous instructions to have been proper, there would be no very strong objection to this part of the charge. It is only extending the principle of set-off beyond what is authorized by the statute. It is only permitting unliquidated damages to be set off against a liquidated demand, a thing which has never been allowed in this court. And in order to do justice it would be necessary to go further, and permit tho defendant to recover a balance, provided the damages sustained should exceed the value of the property delivered. To do this would be to introduce an additional new feature in our judicial pi’oceedings.

The principle adopted by the court of common pleas is admitted to bo of modern invention. It has never been recognized in this court. It may operate well, but we incline to the opinion that it will be found to be mischievous in its operation and consequences. We are not as yet prepared to adopt it. In our opinion the court of common pleas erred in the instructions given to the jury, and in refusing to instruct as requested by the plaintiff in error.

The judgment of the court of common pleas is reversed, and the cause is remanded for further proceedings.

Read, J.,

dissenting. Whore a contract is entire and indivisible, and payment is to be made on complete performance, complete performance is a condition precedent, and suit can not be brought on part performance. But where the contract is capable of division, and its entirety has been destroyed by part performance, beneficial to the recipient, and accepted by him, the law implies a promise that he shall pay to the extent of the benefit received, and suit may be maintained upon such part performance, after the time has expired for the completion of the full contract. On such suit the defendant, to lessen the amount of the recovery, may prove any damage he may have sustained by breach *of the contract; and this, not upon the principle of set-off, but to show the extent of the benefit he has received, and for which the law holds him responsible. The right to reduce the recovery in this way, by proving damage, has its foundation in the very contract itself. Hence, if the damage were greater than the benefit, the defendant would not bo permi tted to recover the excess. He has the option to resort to his cross-action to recover damages for the breach of the contract, or to give it in evidence to reduce or defeat the recovery, by showing that the part performance of the plaintiff conferred no benefit.

These doctrines, respecting the right to maintain an action for part pei’formance, are so consistent with principle, and commend themselves so strongly to reason and justice, and indeed are so necessary to prevent manifest injustice, that they have become almost of universal adoption in modern decisions, and have been freely extended to building contracts, contracts for work and labor, and the sale and delivery of goods.

This doctrino was recognized to the fullest extent in the case of Oxendoll v. Witheral, 17 English Com. Law, which was an action upon the common counts for 130 bushels of wheat; and the jury found that the contract was entire for 250 bushels.

The learned judge, who presided at the York assizes, was of opinion that even if the contract was entire, as the defendant had not returned the 130 bushels of wheat, and the time for completing the contract had expired before suit was brought, the plaintiff was entitled to recover the value of the 130 bushels which had been delivered and accepted by the defendant. The verdict was entered with liberty to move for a nonsuit, if, in full bench,'the court were of opinion that the plaintiff was not entitled to recover. Brougham accordingly moved. But Tentcrden, C. J., and Bayloy and Parke, Judges, held that the law had been rightly ruled and judgment was entered for the plaintiff.

It was so ruled in Bowker v. Hoyt, 16 Pick. 555, *where a recovery was had for 410 bushels of corn—although the proof was that the 410 bushels of corn h ad been delivered in part performance of an entire contract for 1,000 bushels, and that the defendant demanded a fulfillment of the entire contract. Wilde, J., remarked: “ The defendant accepted the 410 bushels of corn, and promised to settle the account therefor; and if there had been no such promise, the acceptance of the corn was a severance ot the entirety of the contract, and the defendant was bound to pay for the corn so delivered. But the defendant may reduco the plaintiff’s claim- by showing any damage he may have sustained by the plaintiff’s failure to fulfill his contract, and thus substantial justice may be done without subjecting the defendants to the necessity of bringing a cross action.”

This doctrine is recognized in Chitty on Contracts, both in the text and notes, 6th Amercian edition, from 3d London, 430, 446, 479, 743.

The American cases fully sustain it in Massachusetts, Pennsylvania, Yermont, and New Hampshire; and in some of the other states there has been a conflict of decision.

There is a large collection of cases which support the doctrine for which I contend, in a learned and elaborate note to the case of Cutter v. Powell, in 2 Smith’s Leading Cases, 24.

Indeed, it is recognized, both in England and America, both in ancient as well as modern cases, and has become a fixed principle in the text-books, that on a delivery of part of the articles under an entire contract, unless the vendee return the articles so received in part perlormance of the entiro contract, such reception and retention severs the entirety of the contract, and authorizes a recovery upon an implied obligation in law, to the extent of the value of the articles so retained, after the time has elapsed for the performance of the entire contract; up to which time the vendee has the right to rescind and return the articles.

The contrary doctrine is unreasonable and unjust, and fraught with mischief. It enables the vendee, who has ^received a part of the articles, and who perhaps has sustained no injury from the non-delivery of the balance, to retain them without compensation, if the vendor bo unable to deliver the whole. It operates unjustly upon the great class of producers in the country—men who have grain and hay and pork to sell—who oftentimes, at the time of the contract of sale, may not know exactly thé amount they may raise, and yet contract to deliver a given amount. Now if the vendee receives a part, it should be regarded as a waiver of the entirety of the contract. It is in fact a waiver by the act of the vendee. To hold that a vendee may receive and hold articles without compensation, where the value of those received does not depend upon the delivery of the whole, is a violation of all equitable consideration. To say that a man may retain 999 bushels of corn because the odd bushel is lacking on a contract for a 1,000, or that the builder of a house is not to receive compensation because the last nail may not have been driven, or the last door hung, or that the laborer for fifty-nine days shall receive no pay because he has not worked the sixtieth, shocks every man’s sense of justice. I hold such is not the law, and never was the law, and that the mistake has sprung up in misapprehending what was an entire and what a divisible contract.

The distinction which will reconcile most of the cases, and which conforms to strict principle, is, between contracts which are entire and indivisible, and those which are entire, but capable of severance and division. A failure to recognize this distinction has intx-oduced some confusion and conti’adiction into the authox’ities. In the first instance, the contract must bo pex-formed befox’o action can be maintained. In the latter part, performance severing the contract, the law imposes the duty of compensation, and implies an obligation of payment which will support an action, and authoxúzo a recovery to the extent of the benefit received. This distinction is founded in l’oason. If the contract be entire, and incapable of severance, and no part be completed, thei’e is no certain mode of determining the value of the *part performed in reference to the value of the whole; and the law can not imply an obligation to pay a sum certain. If the contx'act embrace the completion of a single thing, that must be done before a right of action accrues. Because, if a man contract to pay an entire sum for the completion of a single thing, the law will not break the-single thing into fractional parts, and compel payment in proportion to its relative value, to a full completion; for, in such case, the part performance is of no value unless the completion takes place, and the law will not presume or compel completion to give value to the fractional performance ; and hence, no suit can be maintained upon it; for it may be that no complete performance ever will take place; and, if not, no benefit 'has been received. But where the contract is entire only in embracing a given number of acts or things, each of which is complete in itsolf and of value, performance to any given number of these distinct and separate things will authorize a recovery to that extent, although all may not have been performed.

The entirety of a contract does not depend upon the words of the contract, but upon the subject matter. If the subject matter is one thing or a mere aggregation of relative parts—although each may be complete in itself, yet of necessary combination ta produce the thing contracted for—the contract is entire and not capable of division. As, for instance, a contract to make a watch: the parts are complete in themselves, but they must be combined to make the watch, and are of no value in their separate form, except as to the material; a?id a recovery could not be had until such contract was complete. But a contract for the sale and delivery of one hundred watches is capable of division—for each watch is of distinct and separate value in itself, and its value is. not increased or diminished from any relation which it bears to the other ninety-nine; and, hence, upon the delivery and acceptance of any .part of the number of watches contracted for, the law will allow a recovery to be had, although the whole number may not have been delivered. True, the vendee *may refuse to accept a part, or he may return the part delivered, and rescind the contract; or on action brought he may give in evidence' any damage he may have sustained by not having the whole delivered, to reduce or defeat the recovery; or he may bring his cross action, but this-has nothing to do with the right to bring an action, for the part delivered or retained. Now to hold that before the delivery of sixty watches, that no suit could be brought for theix value, shocks the moral sense of every man. The vendor may ■not have been able to deliver them; the accidents of trade, unforeseen misfortunes of various kinds, may have prevented it, .apart from mere willful refusal. In such case, every man admits there must be a remedy; but how will it be had upon the principle that such a contract is entire and not capable of division ? It can not be had at law, because the action is upon the contract, •and it is not completed. It can not be had in equity, because the contract is the measure of right, both in law and equity; and contracts must have the same effect in either forum.

But it may be said, and is said, that these circumstances may be averred as an excuse for non-performance, and will authorize a suit, when they exist, for part performance. The objection to this rule is want of certainty; it has no fixed limit, and extends as well to contracts, where the thing is entire, as where it is divisible ; and yet no lawyer would contend that on a contract to make a tub, that the finishing of one stave would authorize a recovery to that extent, although a misfortuneor inevitable accident might prevent its completion. The truth is, there is but one rule which ■can be adopted, that will harmonize with principle, and be of safe and certain practical application, and that is, that where there is ■a contract capable of division, to permit a recovery to be had upon part performance, under the restrictions and limitations I have before mentioned. The rule that a contract which is entire in its words, though not in its subject matter, must be completely performed before suit can be maintained for performance in part, oftentimes *works such gross and manifest injustice that j feel myself safe in saying that it is not the law. It sprung into ■existenee from having more regard to the words than to the sub■stance of the contract, and is rather a phantom of verbal Iogic> than a conclusion of reason from a perception of the true relation ■of things. There is a constant endeavor to escape its operation ■even where it is recognized as binding law, in the broad margin which courts sometimes allow to a jury to do justice in their finding, in opposition to some unreasonable rule, and then refuse a new trial, upon the ground that substantial justice has been ■done. I am wholly opposed to the recognition of a rule which it is oftentimes regarded as a merit to cheat in practice. It renders legal results doubtful, and shakes confidence in judicial proceedings.

It is the glory of the common law, that it possesses the inherent power of conforming to reason. It is a fundamental maxim, that when the reason of the rule ceases, the rule itself ceases, and much more does it possess the power of shaking off an error which has sprung into life from misapprehension. It is the duty of courts to shape the symmetry of the law to the harmony of reason, and, where wrong is the result of a rule, although it has been ■sanctioned by precedent, to examine it closely upon the broad light of principle, and to alter and shape it, or discard it if justice require. It is the boast of the law that it is the perfection of ■reason, hence it is oftentimes more safe to walk by its light, than to hobble upon crutches of precedent. But in the present case I conceive that the rule, for which I contend, has ever been the law, and that lack of discriminating between the nature of contracts entire in words and divisible id substance, has produced the error; and that there is as much weight of authority to support the action on part performance of a contract, entire in words, but divisible in substance, as can be arrayed against it, and that the main current of modern decisions is in its favor; and, thus supported, and backed by reason, I had hoped it would be adopted .as law in Ohio.  