
    Isaac B. Levy, Appellant, v. John C. Dettra & Company, Inc., Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Contracts — oral agreement — breach — warranty — rescission — when acceptance no bar to counterclaim for damages.
    Where defendant, upon returning to his place of business after making an oral agreement to buy certain lumber, sent a written order therefor with instructions to “ ship at once ” and within two days the lumber was loaded and directed to be sent to him, the delivery was in time.
    Where the lumber lay in two piles, was bought for one price and was to be delivered together, the sale was a single transaction covering the lumber in its entirety, and defendant should not be permitted to accept part and reject the remainder in the absence of an agreement to that effect.
    Even if there were a warranty that the goods delivered should not contain any unfit or unmerchantable lumber, the breach of the warranty would give rise to no right of partial rescission because of acceptance of a part of the lumber, but such acceptance is no bar to a counterclaim for damages, if proved.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of The Bronx, second district, rendered in his favor and against the defendant for $138.07.
    Robert Seelay, for appellant.
    Harlan Moore (Henry Waldman, of counsel), for respondent.
   Lehman, J.

Plaintiff sued to recover $500, the value of two lots of lumber claimed to have been sold and delivered to the defendant at the agreed price of $18 per 1,000 feet. The plaintiff objects to the amount of the judgment upon the ground that it is insufficient. The two lots of lumber contained 36,480 feet of beech, birch and maple, making a total of $663.12. The plaintiff charged off the freight, which left a balance due of $500, for which sum he asked judgment.

Plaintiff claims that when he examined the lumber at defendant’s location in Vermont, he saw portions of the lumber were not merchantable and unfit for his purposes, which was the manufacture of flag poles. He further asserts that at the time the oral agreement for the sale was made he pointed out some unmerchantable and unfit lumber and defendant agreed to extract the bad and ship only the good. The defendant denies this and claims that the lumber was sold as it lay, that the lumber was worth more but that the price of eighteen dollars was agreed upon only because a small part of the lumber was not perfect. In evidence is the following order sent by defendant to plaintiff in confirmation of the oral agreement:

Obdeb.
John C. Dettra & Co.
Oaks, (Mont. Co.) Pa. , 6/2/1914.
Order placed with I. B. Levy,
■Ship via P & B. F.O.B. Oaks, Terms 2/10 N/A.O.
■Carload lots must invariably be consigned to our siding via P & B. By.
When to ship-—-at once. Our no.....
This number must appear on your invoice.
Lot % Beech, Birch, & Maple 18.00 ° delivered
Lot l%-2 Beech, Birch, & Maple 18.00 delivered
Confirmation of verbal order for 2 lots
O.K. JCD lying at W. Bupert siding Vt.”

Defendant received the first car-load, examined contents and laid aside 2,500 feet, for which he refused to pay. He was willing to pay for the lumber he accepted and used. It is for the price of the lumber accepted and used that judgment was awarded the plaintiff. The defendant after receiving the first carload wrote to plaintiff and stated that the lumber was not suitable for his purpose; that it was worth only $10 per 1,000 feet and expressed a willingness to do business upon that basis. He also ordered plaintiff not to ship the other car-load, and claimed that the deliveries were made too late for his purposes. At that time the other car was in transit. When the second car arrived, defendant examined the lumber on top to a depth of two feet and rejected the car upon the ground that it was delivered to him too late for the Fourth of July market, and that the lumber was not suitable for the purpose for which he had bought it. He further claimed the lumber was unmerchantable and presented a counterclaim for $200. Upon the trial the counterclaim seems to have been disregarded.

The defendant, after making the oral agreement to buy the lumber, returned to his place of business in Pennsylvania, and sent the written order; within two days thereafter the lumber was loaded and directed to be sent to defendant. From these facts it is evident that the plaintiff was neither indifferent nor remiss in executing the order. As to whether delivery is timely or not, every ease stands upon its own facts. In the case of Robinson G. P. Co. v. American Locomotive Co., 56 Misc. Rep. 589, an order was rendered to the seller on November nineteenth and delivery made on December twenty-ninth. This was held to be delivery in sufficient time. In the case at bar the shipping instructions on the order were “ Ship at once,” and this it appears the plaintiff did. There was no guaranty that delivery would he made by a given date.

The case turns on whether or not the contract was entire or severable. The undisputed facts are that the lumber lay in two piles at West Rupert in Vermont, that defendant bought them on the same day, for one price, to be .delivered together, “ shipped at once.” The sale was a single transaction and the lumber sold in its entirety. It is clear that the intention of the parties did not contemplate that the contract was in any way severable.

Since the contract is entire, the defendant cannot be permitted to accept part and reject the remainder unless there was an agreement to this effect. Such an agreement has not and cannot be spun out from the facts presented.

Even if the defendant’s story be accepted as true it shows at most only a warranty that the goods delivered shall not contain any unfit or unmerchantable lumber. Since the defendant has accepted a part of the lumber the breach of this warranty can give rise to no right of partial rescission but such acceptance does not bar a counterclaim for damages. In this case there is, however, no proof of such damages.

Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Guy and Whitaker, JJ., concur.

Judgment reversed, and new trial granted, with costs to appellant to abide event.  