price agreed on, including the 4 sacks which were objected to, Lord Ellenborough was of opinion that the vendor could not split the contract and bring his action for part only; and the plaintiff was non-suited. Walker v. Dixon, 2 Starkie 281, 3 Eng. Com. Law Rep. 347. In Manning's Dig. p. 389, the court are stated to have set aside the non-suit. Lord Tenterden alludes to this in 9 Barn. & Cress. 386.

The principle is stated with great clearness by Parke, J. He observes that "where there is an entire contract to deliver a large quantity of goods consisting of distinct parcels, within a specified time, and the seller delivers part, he cannot before the expiration of that time bring an action to recover the price of that part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But," he adds, that if the vendee "retain the part delivered after the seller has failed in performing his contract, the latter may recover the value of the goods which he has so delivered." 9 Barn. & Cress. 386.

This opinion was delivered in a case wherein the contract was for the sale, at 8s. per bushel, of 250 bushels of wheat to be delivered within 6 weeks, which time had expired before the action was brought, and the vendor had only delivered 130 bushels, and these the vendee had not returned. In an action brought by the vendor to recover the price thereof, the court gave judgment for the plaintiff; considering that the vendee having retained the 130 bushels after the time for completing the contract had expired, was bound by law to pay for the same. Oxendale v. Wetherell, 9 Barn. & Cress. 386, 17 Eng. Com. Law Rep. 401.

The courts of New York do not go so far in favor of the vendor as the English courts have done. Spencer, J. alluding to the importance attached in Waddington v. Oliver to the circumstance of the time for delivering the whole not having arrived, said he did not perceive the grounds on which this rested. McMillan v. Vanderlip, 12 Johns. 167, cited ante, p. 404. Referring to what is there said by Judge Spencer of the case decided by Lord Hale at the Norfolk assizes 1662, Nelson, J. expressed the opinion that the case of Oxendale v. Wetherell, "is as exceptionable and as repugnant as the case decided by Lord Hale to the principle of the cases determined in this court, and therefore cannot be regarded." Champlin v. Rowley, 13 Wend. 257. In the court of errors Walworth, Ch. used yet stronger language: pronouncing that Oxendale v. Wetherell "cannot be considered as good law any where;" that "it is not founded upon any equitable principle, and is contrary not only to justice but also to common

sense." S. C., 18 Wend. 191, 2. It certainly appears that the decision in Oxendale v. Wetherell, is not in accordance with the rule established in New York. Mead v. Degolyer, 16 Wend. 637; McKnight v. Dunlop, 4 Barbour 44, 5; Paige v. Ott, 5 Denio 406. But it does not appear that that decision is, out of New York, regarded in the light in which Chancellor Walworth viewed it.

The supreme court of Massachusetts, referring to Orendale v. Wetherell, Champion v. Short, 1 Camp. 53, and Bragg v. Cole, 6 J. B. Moore 114, pronounces that "the principle established by these cases is founded on manifest justice." Bouker v. Hoyt &c. 18 Pick. 557. This was a case of a contract for the sale of corn; the vendor proving the delivery of 410 bushels, and the vendee alleging that this delivery was in part performance of a contract for 1000 bushels. "The defendants," said Wilde, J., "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 of the entirety of the contract, and the defendants were bound to pay for the corn delivered; for the case finds that it was to be a cash transaction. From this liability the defendants could not be released by the failure of the plaintiff afterwards to deliver the rest of the corn, without returning to him the corn delivered; and as the corn was not returned, the plaintiff may well maintain his action; but the defendants may reduce the plaintiff's claim by shewing any damages they have received by the plaintiff's failure to fulfil his contract; and thus substantial justice may be done, without subjecting the defendants to the necessity of bringing a cross action.”

6. How vendor's right of action may be affected by want of title to, or defect of quality of, the thing sold.

When after a sale, with a warranty of the vendor's right, as mentioned ante, p. 357, a third person claims the chattel, it has been decided in New York, in an action by the vendor, for the price, that though the action may be defeated by shewing a recovery of the chattel in a suit brought by that third person, it cannot be defeated by making a voluntary payment to him, and then setting up his title. Vibbard &c. v. Johnson, 19 Johns. 77. This doctrine is stricter than prevails in some of the states, in respect to a covenant of warranty of title of land, ante, p. 87-89; and stricter than the English rule in the case of chattels.

In England, when an action was brought for the price of goods, by an auctioneer employed by a supposed executrix, to sell the testator's property, and after the sale, another person who was the real executrix, gave notice to the defendant of that fact, and claimed payment of the money, it was decided that the defendant was justified in withholding payment to the agent of the supposed executrix, after notice of the title of the real executrix, to whom he was certainly liable; and the auctioneer was nonsuited. Dickenson v. Naul, 4 Barn. & Adol. 638, 24 Eng. Com. Law Rep. 130.

This is considered by the court of exchequer a direct authority for the doctrine that if goods be sold by a person who is not the owner, and the owner be found out and be paid for those goods, the person who sold them under pretended authority, has no right to call upon the defendant to pay him also. Allen v. Hopkins, 13 M. & W. 102; Walker v. Mellon, 2 Car. & Kirw. 346, 61 Eng. Com. Law Rep. 345.

By the modern practice, to avoid circuity of action, the vendee may shew in reduction of damages, such ground of deceit or breach of warranty in the sale, as would be sufficient to sustain a cross action. Harrington v. Stratton, 22 Pick. 510; Perley v. Batch, 23 Id. 283; Pennock v. Tilford, 5 Har. 456. But in order to succeed in such defence, it is necessary for the defendant to shew a case which would warrant a recovery in some action. Mixer &c. v. Coburn, 11 Metcalf 561; Carter &c. v. Walker, 2 Richardson 40.

Perhaps, as Lord Abinger observes, the use of the word "warranty," in many cases between vendor and vendee, may be unfortunate; the question, as he remarks, is often simply this, "whether there has been a non-compliance with a contract which a party has engaged to fill." Chanter v. Hopkins, 4 M. & W. 405. In this case the purchase was of a defined and well known machine; the plaintiff performed his part of the contract by sending it, and recovered the stipulated price. It was the ordinary case of a man, who had the misfortune to order a particular chattel, on the supposition that it would answer a particular purpose, but who found it would not. The case of Ollivant v. Bayley, 5 Adol. & El. N. S. 288, 48 Eng. Com. Law Rep. 288, was decided on the same principle.

When a manufacturer contracts to deliver a manufactured article at a distant place, the vendee is bound to accept the article if only deteriorated to the extent that it is necessarily subject to in its course of transit from the one place to the other; in other words, he is subject to and must bear the risk

of the deterioration necessarily consequent upon the transmission. Bull v. Robison, 28 Eug. Law & Eq. 586.

7. Whether there is a right of action for the price of the goods, when there has been received therefor, at the time of the sale, what proves of no value.

Kent, C. J., after examining the ancient dicta in Shep. Touch. 140, and Wade's case, 5 Rep. 114, approved the doctrine laid down by Paulus in the Digest, and incorporated into the French law-that if a creditor receive by mistake any thing in payment, different from what was due, and upon the supposition that it was the thing actually due, as if he receive brass instead of gold, the debtor is not discharged; and the creditor, upon offering to return that which he received, may demand that which is due by the contract. Dig. 46, 3, 50; Pothier, Traité des Obligations, No. 495. A bank note for $50, received by the plaintiff from the defendant in payment for cattle, was on the same day passed to a third person. Soon afterwards it was discovered to be counterfeit, and returned to the plaintiff, who thereupon sued and recovered the $50. Markle v. Hatfield, 2 Johns. 455. Had the bill been genuine, and had the bank failed, and the parties been equally ignorant of the fact, the decision would have been different. Spencer, J., 11 Johns. 414.

Though the sale be for a third person's note, and that be received in full satisfaction, yet if the vendee knew the third person to be insolvent, and represented him to the vendor as a man of property, the note taken under this fraudulent representation is no payment. Willson v. Foree, 6 Johns. 110. Fraud renders void the special contract as to the manner of payment. Arnold v. Crane, 8 Johns. 80; Martin v. Pennock, 2 Barr 376. That special contract being void, the vendor may disregard it and bring assumpsit for goods sold. Pierce &c. v. Drake, 15 Johns. 475.

Though there be no fraud on the part of the defendant, yet if goods be supplied at a shop for which he is reponsible, and there be received therefor a bill with his name on it, but put there without his authority; it appearing that the vendors did not take the bill entirely on the credit of the other names which were to it, independently of the defendant's, but received it with the belief that his name was also to it, they will be taken to have agreed to sell the goods on his credit, and may maintain an action against him for the price of the goods. Rose &c. v. Edwards, 1 M. & W. 734.

So if the vendee deliver to the vendor the note of a third person, but guaranties that it shall be paid, or he will make it good, the vendor, after failing in his endeavours to collect the note, may, instead of suing on the guaranty, maintain an action for the price of the goods. Butler v. Haight, 8 Wend. 535; Monroe &c. v. Hoff, 5 Denio 360.

But, generally speaking, when the transaction is free of fraud, if a person buy goods of another, who agrees to receive a certain bill in payment, the buyer's name not being on it, and that bill be afterwards dishonoured, the person who took it cannot recover the price of his goods from the buyer; for the bill is considered as a satisfaction. Bayley, J. in Emly &c. v. Lye, 15 East 13; Read v. Hutchinson, 3 Camp. 352.

A defendant having in possession certain promissory notes, bargained with the plaintiff for a quantity of rum, for which he was to pay by those notes, and accordingly there was delivery of the rum to the one party, and of the notes to the other. Both parties were then ignorant of the endorsements being forgeries; and before the notes became due, the maker failed and absconded. In an action for the price of the rum, the court was of opinion that the action was not maintainable if it was the original intent of the defendant to sell, and of the plaintiff to buy, the notes, and to make payment in rum. Ellis v. Wild, 6 Mass. 321.

The defendant's agent offered the note of a third person for a horse; the vendor after taking time to consider agreed to sell the horse for the note. It was held that he took the note at his own risk and could not afterwards maintain an action for the value of the horse. Whitbeck v. Vanness, 11 Johns. 409; Rew v. Barber, 2 Cow. 508; 3 Id. 272.

8. Whether there is a distinction between the effect of a note of a third person taken at the time of the sale, and one taken for a pre-existing debt.

In New York, it is laid down in one case, that if a vendor of goods receive from the purchaser the note of a third person at the time of the sale (such note not being forged and there being no fraud or misrepresentation on the part of the purchaser as to the solvency of the maker) it is deemed to have been accepted by the vendor in payment and satisfaction, unless the contrary be expressly proved. Breed v. Cook &c. 15 Johns. 241. But in another case the distinction between the effect of the note of a third person when taken at the time of making the contract, and its effect when taken for an antecedent debt, is disapproved, and the rule laid down that it