concludes to take the goods he shall take them as full performance of the seller's obligation.18 The obligation of the seller may also be made conditional upon certain performance by the buyer. A warranty may by its express terms be enforceable only by returning the goods, 19 or the right to sue on the warrranty may be made conditional upon the prior payment of the purchase price.20

717. Rule of the Civil Law.

In the Civil Law it seems to be the rule that acceptance of the goods does not involve a release of the seller's obligation-at least if the buyer expressly gives notice of his claim as soon as the defect is discovered. A French writer, 21 writing of the German law prior to the enactment of the German Civil Code and of the present Commercial Code says: "In the first place it is very certain that if the defendant not only has received delivery but has accepted and approved it as regular and perfect, he has thereby recognized that the performance is in conformity with the contract, and he is debarred, whatever happens, from testing its validity. But what is necessary to observe is that as a basic rule the simple receipt, and by receipt is not meant a delivery made without the knowledge or participation of the recipient, does not of itself imply approval of the performance and recognition of its validity. Therefore, the simple fact does not take away from the creditor the rights which belong to him because of inadequate performance. It may be, and it is an opinion which has been upheld, that if one sets up after ap

13 See Williston, Sales, § 272.

19 This is a common provision in sales of machinery. Davis v. Robinson, 67 Iowa, 355, 25 N. W. 280; McCormick Harvesting Machine Co. v. Brower, 88 Iowa, 607, 55 N. W. 537; Hefner v. Haynes, 89 Iowa, 616, 57 N. W. 421; Acker v. Kimmie, 37 Kans. 276, 15 Pac. 248; Champion Machine Co. v. Mann, 42 Kans. 372, 22 Pac. 417; Walters v. Akers, 31 Ky. L. Rep. 259, 101 S. W. 1179; Guhy v. Nichols & Shepherd Co., 33 Ky. L. Rep. 237, 109 S. W. 1190; Jasper County Bank v. Barts, 130 Mo.

App. 635, 109 S. W. 1057; Sandwich Mfg. Co. v. Feary, 34 Neb. 411, 51 N. W. 1026; Davis v. Iverson, 5 S. Dak. 295, 58 N. W. 796. As to waiver of a notice in the manner required by a condition in a warranty, see Buchanan v. Minneapolis Threshing Machine Co., 17 N. Dak. 343, 116 N. W. 335.

20 Case Threshing Machine Co. v. Smith, 16 Or. 381, 18 Pac. 641. Cf., however, Campbell v. Lodge, 76 Kans. 400, 92 Pac. 53.

21 Raymond Saleilles, 7 Annales De Droit Commercial, Pt. 2, 42 (1893).

parent performance of the contract a refusal to pay because of bad quality or defective performance, the fact that performance has been received must involve a change in the burden of proof, but this is an entirely different question. What is necessary to understand thoroughly now is that receipt of performance as a basic rule and by itself does not take away from the one who receives delivery the rights which belong to him at common law on account of nonperformance." In a note to this passage the author adds that the jurisprudence of France is settled to the same effect. By provision of the German Commercial Code 22 if goods are sent from another place prompt examination must be made and immediate notice of the defects given. Failure to do this is conclusive in regard to patent defects and notice of latent defects must be given as soon as the defects are discovered.

718. Rescission of acceptance.

Whether acceptance by the buyer is merely an assent to become owner or is also an agreement that the transfer of the property shall be a complete satisfaction of the seller's obligations, the acceptance is subject to the universal rule that assent procured by fraud or given under a mutual mistake of a sufficiently material fact of both parties may be rescinded.23 The remedy of rescission for breach of warranty which is allowed by the Uniform Sales Act and by the law of many States also is important to consider in this connection.24 But if the parties agree either at the time of making the original bargain, or subsequently, that specific goods with whatever qualities they may have shall be taken in full satisfaction of the seller's obligation, the transaction obviously cannot be rescinded in the absence of fraud or mistake.

§ 719. Acceptance of part of goods tendered.

Where the buyer accepts delivery of part of a quantity of goods which are tendered to him, the case may present any of several different states of fact.

22 Handelsgesetzbuch, Art. 377 (Art. 347 in old Handelsgesetzbuch).

seq.

23 See infra, §§ 1486 et seq., 1535 el

24 See infra, § 1461.

1. The contract may permit or require the delivery in instalments of the goods contracted for, and the part accepted may constitute performance of one instalment. As this is exact performance, so far as it goes, of the contractual obligations of the parties, the situation requires no comment. If the instalment is of inferior quality, the principles governing acceptance of goods under a contract for a single delivery, will be applicable. No inference will generally be justified from acceptance of an inferior instalment that others of the same kind will be accepted. 25

2. The bargain though contemplating but a single delivery may contemplate several distinct sales, several dissociated things being ordered or contracted for, each for a distinct price. Here acceptance of part will not justify any implication of assent to become owner of the remainder, or of discharge of the seller from his legal duty with reference to the remainder. If some of the goods tendered are not in accordance with the contract, the buyer is generally held entitled to accept such of the articles tendered as fulfill the seller's obligation and reject those which do not; 26 and if the different things were separately bargained for this presents no difficulty." Some courts have admitted evidence that a separate price was agreed for each article, and have then treated the transaction as several contracts, though the ultimate bargain was for a lump sum.28 It is difficult to accept this result. If it be granted that the contract is divisible so that the delivery of one article would give rise to a debt, that does not enable the buyer to take some and reject others. To justify such a course there must be several contracts. 29

25 See infra, § 741.

Rubin v. Sturtevant, 80 Fed. Rep. 930, 51 U. S. App. 286, 26 C. C. A. 259; Cohen v. Pemberton, 53 Conn. 221, 2 Atl. 315, 5 Atl. 682, 55 Am. Rep. 101; Spring v. Slayden-Kirksey Mills, 106 Ill. App. 579; Young & Conant Mfg. Co. v. Wakefield, 121 Mass. 91; Goldstandt-Powell Hat Co. v. Cuff, 19 Okl. 243, 91 Pac. 862; Schiller v. Blyth & Fargo Co., 15 Wyo. 304, 88 Pac. 648.

"See infra, § 863.

28 Field v. Austin, 131 Cal. 379, 63 Pac. 692; Aultman & Taylor Co. v. Lawson, 100 Iowa, 569, 69 N. W. 865; Buckeye Buggy Co. v. Montana Stables, 43 Wash. 49, 85 Pac. 1077.

29 See infra, §§ 861 et seq. If the buyer can accept some and reject others, the seller must equally be at liberty to make a valid tender of some and not others, unless the principle stated at the end of § 720 be accepted.

3. The delivery may not be full delivery of the whole or of any divisible portion of the goods contracted for; and the remainder of the goods though tendered may be refused or at least not accepted by the buyer. In such a case it is often said that acceptance of part is proof of acceptance of the whole.

§ 720. Whether acceptance of part is acceptance of the whole. Certainly if the buyer does not clearly state that he refuses the remainder of the goods, his acceptance of part of the goods offered under an indivisible contract is some evidence that he assents to taking the entire quantity offered.30 Even though he expressly refuses to take the remainder, nevertheless his conduct may amount to an acceptance, unless the seller assent to the partial acceptance, for the buyer had no right to take part, unless he was willing to take the whole. Where a person's action is legal on one supposition and illegal on any other, the law will conclusively attribute to the action its legal meaning. 31 On the ground that acceptance of part will diminish the damages and therefore will presumably meet with the assent of the seller, the buyer has been allowed to take that part of goods ordered or contracted for which fulfill the requirements of the order or contract, and reject the remainder, without any expression of assent by the seller to this course of conduct. 32

30 Meyer v. Everett Pulp Co., 193 Fed. 857, 113 C. C. A. 643; Maynard v. Render, 95 Ga. 652, 23 S. E. 194; Wolf v. Dietzsch, 75 Ill. 205; Telford v. Albro, 60 Ill. App. 359; Buckeye Buggy Co. v. Montana Stables, 43 Wash. 49, 85 Pac. 1077.

31 See infra, § 1856; and see cases cited infra, n. 33. But in Teeter v. Cole Mfg. Co., 151 N. C. 602, 66 S. E. 582, where a buyer had taken from a carload of lumber property mentioned, and had refused the rest, the court held him not liable for the price of the whole carload, but only liable as a converter.

32 In Molling v. Dean, 18 Times L. R. 217, the plaintiff had contracted to supply the defendants with a number of books, and supplied the de

fendants under this contract with a parcel of 40,000 books. The defendants, finding some of the books not of the quality agreed, notified the plaintiffs that they intended to reject all which were not saleable. The defendant accordingly accepted 13,000 of the books and rejected the remainder. The chief justice said: "It was argued that the defendants, having picked out and sold 13,000 books, could not reject the rest of the parcel. In a contract of the nature of the one in question, where every one of the articles had to be up to standard, the purchaser was entitled to keep some and reject others, and thereby reduce the damages to be paid by the vendor in respect of the breach of contract." See also Cohen

The right of the seller to take this course would not, however, be universally admitted.33

§ 721. Effect of seller's assent to buyer's acceptance of part. In the cases supposed in the two preceding sections the seller is not supposed to have assented to any variation of the buyer's original obligation. Of course such assent is possible, and a fourth situation then arises.

The seller though bound to make a single delivery, and though no separate price has been agreed upon for any portion of the total amount contracted for may, nevertheless, offer part, or may assent to a desire of the buyer to accept only part and that part may be given and accepted. It is here a question of fact whether that part is offered as a substitute for the whole. Such a case has previously been considered.34 If the transaction is not properly construed as an agreement to substitute partial for full performance, the parties must have contemplated that the partial delivery should be accepted on account, and that the seller should later deliver the remainder of the goods. Such an understanding necessarily involves a waiver by the buyer of the condition qualifying his obligation to accept, that full performance should be made at one time. The buyer's conduct, therefore, would preclude him from refusing delivery of the remainder of the goods if made within a reasonable time. Whether such partial acceptance also excuses the seller from liability to pay damages on account of his delay depends upon the same principles previously considered in connection with the acceptance of goods of inferior quality.

". Pemberton, 53 Conn. 221, 2 Atl. 315, 5 Atl. 682, 55 Am. Rep. 101; Showalter v. Winchester Grocery Co., 148 Ky. 579, 147 S. W. 16; Canton Lumber Co. v. Liller, 107 Md. 146, 68 Atl. 500; Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700, 154 N. W. 91, 2 A. L. R. 638; Holmes v. Gregg, 66 N. H. 621, 28 Atl. 17; Larrowe Mig. Co. v. Lyons Beet Sugar Refining Co., 137 N. Y. App. Div. 732, 122 N. Y. S. 567. But see cases in the following note.

33 See Crane Co. v. Columbus Const.

Co., 73 Fed. 984, 46 U. S. App. 52, 20 C. C. A. 233; Pacific Timber Co. v. Iowa Windmill, etc., Co., 135 Iowa, 308, 112 N. W. 771; Morse v. Brackett, 98 Mass. 205; Simon v. Wood, 17 N. Y. Misc. 607, 40 N. Y. S. 675; J. E. DeVaughn's Son v. Ohio Pottery Co., 12 Ga. App. 50, 76 S. E. 793; Mendetz v. Wood, 148 N. Y. S. 92, 86 N. Y. Misc. 52; Levy v. J. C. Dettra Co., Inc., 154 N. Y. S. 176, 91 N. Y. Misc. 41; Syer v. Lester, 116 Va. 541, 82 S. E. 122.

34 See supra, § 703.