
    WILLIAM H. TALMAGE, Plaintiff and Appellant, v. JOHN WHITE et al., Defendants and Respondents.
    The plaintiff brought this action to recover the value and agreed price of quantities of coal alleged to have been sold and delivered to defendants.
    The answer admitted the complaint, and set up as a defence and counter claim, certain contracts between the parties, for the sale and delivery of coal by plaintiff to defendants which were unfulfilled, and for the breach of which defendants claimed damage, etc.; but although claimed as a set-off, there was no reply to the answer, and it appears that such a claim was not urged at the trial, or on the argument on this appeal, and the verdict for defendants directed by the court below, rested solely upon the ground of the indivisibility of the several contracts requiring a complete performance of all as a condition precedent to any recovery for a part.
    
      Held, That these were severable contracts, and capable of part perform- • anee, and that for the part performed a recovery could be had, bringing them within the rule. That although a certain definite number or quantity of things are brought together, the price is fixed by a certain agreed • rate to be paid for each single article or measure (Story on Sales, § 248, 245 ; Seymour e. Davis, 2 Scmdf. 289).
    It is a general principle that if the contract is divisible, and capable of a separate physical performance, then a delivery and acceptance of a part is sufficient; but if it is indivisible, etc., then the whole contract must be performed at one time (Flanagan v. Demurest, 3 Bobt. 173).
    Where no time of payment is mentioned, it would be due on the delivery of the property sold under it. The delivery of the whole not being a condition precedent to payment, it would become due as fast as delivered (Sickles v. Pattison, 14 Wend. 257).
    Before Monell, Sedgwick, and Van Vorst, JJ.
    
      Decided February 1, 1873.
    Appeal from a judgment.
    The complaint alleged that the plaintiff had sold and delivered to the defendants, and that the defendants had bought and received of the plaintiff, certain quantities of coal at an agreed-upon price, which they promised to pay, but have failed to pay, except in part, leaving a balance of $4,450 due and unpaid, in which sum the defendants were still indebted for the goods so sold.
    The answer admitted “the allegations of the complaint.”
    For a further defence by way of set-off, the defendants alleged the making of several contracts between the plaintiff and defendants, whereby the plaintiff sold and agreed to deliver certain quantities of coal at prices agreed upon. That the defendants have been at all times ready and willing to receive and accept said coal, and pay for the same according to the contract, but that the plaintiff delivered a part thereof only, and failed and refused to deliver the balance, although requested to do so, to the damage of the defendants.
    There was no reply to the answer.
    The action was tried by the court and a jury.
    The plaintiff moved for judgment on the pleadings, on the ground that the matter set forth in the answer, was neither a counter-claim, set-off, or other defence..
    The motion was denied, and the plaintiff excepted.
    
      The defendants gave in evidence several contracts which were all like the following, except some were deliverable “on board,” “on dock.” “at Elizabeth-port,” “alongside H. Y. ” etc.
    “Ho. 1050. Hew York, 186
    “ WHITE, FOWLER & SHOW,
    “Coal Merchants,
    “Ho. Ill Broadway, “ All shipments at consignee’s risk, unless 1 H. Y. we have special instructions to insure.
    “All sales subject to our printed regulations.
    “ Sold to
    “WHITE, FOWLER & SHOW,
    “ 500 tons Scranton Hut Coal, at E. Port, subject to breaks of Del. L. and W. R. R. Co., at 4.55 p. t.
    “WM. H. TALMAGE & CO.
    “pp. Fox.”
    The several contracts were made in August and September, 1868.
    One of the defendants testified to the amount of coal delivered under the several contracts, and the market price of coal in Hovember, 1868, and gave the highest price at any time, between the date of the contracts and the commencement of the suit, and that a considerable portion of the coal under each of the contracts had not been delivered. There was evidence of a demand for its delivery, and a neglect to deliver. There was also some evidence of a tender to the defendants of all the coal covered by the several contracts.
    The court held that the proof of tender was insufficient, and directed a verdict for the defendants.
    The plaintiff appealed from the judgment.
    
      Mr. W. S. Poor, for appellant.
    
      Mr. W. W. Goodrich, for respondents.
   By the Court.—Monell, J.

The ground upon which the learned justice directed the verdict in this case, was, that the several contracts were entire and inseverable, and required a delivery, or offer to deliver, all the coal before an action for any part delivered could be maintained.

Although the matter set up in the answer was therein claimed to be a set-off, that claim was not urged at the trial, and was abandoned upon the argument of the appeal, as was also any pretence that it could be used as a counter-claim.

The judgment rests, therefore, solely on the ground of the indivisibility of the contract, requiring a complete performance, as a condition precedent to any recovery for a part.

The complaint alleges a sale and delivery of a part of the coal, and the admission in the answer is of such sale and delivery, which is sufficient to establish its acceptance by the defendants. Besides, the evidence abundantly establishes that the part delivered was accepted.

It is very clear, I think, that these were severable .contracts, and capable of part performance, and that for the part performed a recovery may be had. They were for the sale and delivery of a specified number of tons of coal at a fixed price. Part of the coal under each purchase was delivered to, and accepted, and in part paid for, by the defendants, bringing the contracts • within the rule that although a certain definite number or quantity of things are brought together, the price is fixed by a certain agreed rate to be paid for each single .article or measure (Story on Sales, § 243.)

In Seymour v. Davis, 2 Sandf. S. C. 239, the purchase was of five hundred barrels of cider deliverable .in parcels, each to be paid for on delivery. Several parcels were delivered from time to time, and all paid for except the last. The action was to recover the price of the last parcel, and it was claimed, that inasmuch as the whole had not been delivered, there could not be a recovery for any part. The court held otherwise, and that the plaintiff could recover for each delivery and acceptance.

Thus (Mr. Story says, Story on Sales, § 245), if a person order three parcels of goods at a certain price, he may refuse to accept one without the others ; but if one only of them be sent and he accept it, he cannot refuse the second, since by his acceptance of one he has consented to treat the contract as several for each of the parcels. So also if he order twenty barrels of flour, and only ten are sent, and he accept them, he cannot refuse to pay therefor.

The case is different from those contracts where payment is to be made only upon delivery of the whole. Then there is no contemplation of a part performance, and the entire delivery is a condition precedent to any payment. Such were the cases of Paige v. Ott, 5 Denio, 408; Champlin v. Rowley, 13 Wend. 258, and Mead v. Degolyer, 16 Id. 632.

This distinction is clearly taken in Sickles v. Pattison, 14 Wend. 257, where the court say: “lo time of payment was mentioned. In contemplation of law, it would probably be due on the delivery of the lumber. The delivery of the whole was not a condition precedent to' payment. It would become due and demandable as fast as delivered.”

In Flanagan v. Bemorest, 3 Robt. 173, the question arose as to the validity of the contract under the statute of frauds, and the general principle is there stated to be, that if the contract is divisible and capable of a separate physical performance, then a delivery and acceptance of part is sufficient; but where the Contract is indivisible, and cannot by its terms, or otherwise, be performed in separate parts, then the whole contract must be performed at one time.

For these reasons I am of opinion that the direction of the learned justice was erroneous, and that the judgment should be set aside and a new trial ordered, with costs to the-appellant to abide the event.  