slight and unimportant excesses or deficiencies in number, measure or weight.21 3. “If, however, the qualifying words are supplemented by other stipulations or conditions which give them a broader scope or a more extensive significance than the contract is to be governed by such added stipulations or conditions. As if it be agreed to furnish so many bushels of wheat, more or less, according to what the party receiving it should require for use of his mill, then the contract is not governed by the quantity named, nor by that quantity with slight and unimportant variations, but by what the receiving party shall require for the use of his mill; and the variation from the quantity named will depend upon his discretion and requirements so long as he acts in good faith. So where a manufacturer contracts to deliver at a certain price all the articles he shall make in his factory for the space of two years 'say 1,000 to 1,200 gallons of naphtha per month,' the designation of quantity is qualified not only by the indeterminate word say,' but by the fair discretion or ability of the manufacturer, always provided he acts in good faith." 22 manufactured by J. B." McConnell v. Murphy, L. R. 5 P. C. 203. Whether 331 castings substantially complies with a contract for "about 400 castings" is a question of fact for the jury. Clapp v. Thayer, 112 Mass. 296. Deficiency of 5 per cent. is allowable in a contract to deliver 500 bun dles of gunny bags, more or less. Cabot v. Winsor, 83 Mass. (1 Allen) 546; Noble v. Googins, 99 Mass. 231. 21. Polhemus v. Heiman, 45 Cal. 573 (about 53,000 lbs. of wool); Low v. Freeman, 12 Ill. 467; Tilden v. Rosenthal, 41 Ill. 386; Kerwin v. Van Camp Co., 12 Ind. App. 60; New England, etc., Co. v. Standard Worsted Co., 165 Mass. 328, 332; Reuter v. Sala, 4 C. P. D. 439 C. A.; 2 Mechem on Sales, § 1168. "It is well settled that when a specified quantity of an article or thing bought or sold is mentioned in a contract, the amount named will always be regarded as material and de 6 more or terminate, notwithstanding the use A contract for the sale of 500,000 feet of lumber "more or less" is not void for indefiniteness and is satisfied by the delivery of 473,000 feet. Holland v. Rea, 48 Mich. 218. Citing Cabot v. Winsor, 83 Mass. (1 Allen) 546; Morris v. Levison, 1 C. P. D. 155; McConnell v. Murphy, L. R. 5 P. C. 203. "More or less" does not create an ambiguity, for an explanation of which parol evidence is admissible. Shickle v. Chouteau, 10 Mo. App. 241; Cabot v. Winsor, 83 Mass. (1 Allen) 546. The contract may state the quantity indefinitely as between certain limits.23 In such cases, if the contract does not expressly provide which party shall determine the precise quantity between these limits, the rule is that "when from the nature of an agreemane, an election is to be made, the party who is, by the agreement, to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice in order that he may be able to do that first act, and, when once he has done that act, the election has been irrevocably determined, but till then he may change his mind."24 22. Lobenstein v. United States, 91 U. S. 324; Thurber v. Ryan, 12 Kan. 453; Harrington v. Mayor, 10 Hun (N. Y.), 248, 70 N. Y. 604; Callmeyer v. Mayor, 83 N. Y. 116; Bourne v. Seymour, 16 C. B. 337; Guillin v. Daniell, 2 Cromp. M. & R. 61; Tancred v. Steel Co., 15 App. Cas. 125; 2 Mechem on Sales, § 1169. An agreement to sell a cargo of iron to be shipped by a certain ship "about 300 or 350 tons" is satisfied by delivery of 227 tons, if that is all the vessel can carry. Pembroke Iron Co. v. Parsons, 71 Mass. (5 Gray) 589. 23. Staver Carriage Co. v. Park Steel Co., 220 Ill. 412. "About 2,000 to 2,500 lbs. F. C. and all they make for 30 days, say up to 10,000 to 15,000 lbs. at $0.40." New England, etc., Co. v. Standard Worsted Co., 165 Mass. 328. "About 2,000 quarters, say from 1,800 to 2,200 quarters," fixes a maximum and minimum limit. Tamvaco v. Lucas, 1 E. & E. 581. From 1,000 to 3,000 bushels of potatoes. Small v. Quincy, 4 Me. 497. From 700 to 1,000 barrels of meal. Disborough v. Neilson, 3 Johns. Cas. (N. Y.) 81. A sale of a cargo of from 700 to 800 tons of sugar to be shipped from a certain port is satisfied by the delivery of 700 tons, although only a part of a cargo shipped from that port. Standard Sugar Ref. v. Castano, 43 Fed. 279. A contract for the future deliv ery of personal property is void, for want of consideraton and mutuality, if the quantity to be delivered is conditioned by the will, wish, or want of one of the parties." Cold Blast Transportation Co. v. Kansas City, etc., Co., 114 Fed. 77, 57 L. R. A. 696, 699. Quoted with approval in Fowler Utilities Co. v. Gray, 168 Ind. 1, 5. Citing Lancaster v. Roberts, 144 Ill. 213; Welty v. Jacobs, 171 Ill. 624, 40 L. R. A. 98; Rust v. Conrad, 47 Mich. 449; Hoffman v. Maffioli, 104 Wis. 630, 47 L. R. A. 427; Campbell v. Lambert, 36 La. Ann. 35; Houston, etc., Ry. Co. v. Mitchell, 38 Tex. 85; Davie v. Lumberman's Min. Co., 93 Mich. 491, 24 L. R. A. 357. 24. 2 Mechem on Sales, § 1171; Benjamin on Sales, § 359; Blackburn on Sales, p. 128. A contract between a salt manufacturer and a carrier to transport from 1,200 to 5,000 barrels of salt annually, gave the manufacturer and not the carrier the right to elect what quantity between those limits should be transported. White v. Toneray, 36 Va. (9 Leigh) 347. In New England, etc., Co. v. Standard Worster Co., 165 Mass. 328; Small v. Quincey, 4 Me. 497, and Disborough v. Neilson, 3 Johns. Cas. (N. Y.) 81, cited under note 23, the seller had the right to determine what quantity, between the limits fixed, he should deliver. See, also, Robinson v. Noble's Admr., 33 U. S. (8 Pet.) 181. Where the seller delivers to the buyer the goods he contracted to sell, mixed with goods of a different description, not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the remainder, or he may reject the whole.25 The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.2 26 Section 45. Delivery in Instalments.-(1.) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments. (2.) Where there is a contract to sell goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it depends, in each case, on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken. The delivery by the vendor of the entire quantity of the goods called for by the contract is a condition precedent to the obligation of the buyer to accept them and pay the price, and he need not accept instalment deliveries in the absence of an express or implied agreement to the contrary.1 25. Hoffman v. King, 58 Wis. 314; Nicholson v. Bradfield Union, L. R. 1 Q. B. 624; Levy v. Green, 8 E. & B. 575, 28 L. J. Q. B. 319 Exch.; Benjamin on Sales, § 689. 26. Cash v. Hinkle, 36 Iowa, 623; Kingdom v. Cox (1848), 5 C. B. 522, 526. "When the quantity is to be ascertained by measurement at a particular time or place, or in a particular manner, if such measurement becomes impossible, nevertheless the quantity may be ascertained in some other Frequently, however, contracts are expressly or impliedly made for an entire quantity of goods to be delivered over an extended period of time in stated instalments each of which is to be paid for separately. In such contracts, the delivery or payment of one instalment is not a condition precedent to be performed before the obligation of the other party to perform accrues, in the absence of an express or implied stipulation to that effect.3 Whether the non-delivery or non-payment of one or more instalments according to the terms of the contract is such a breach of the contract as to be a valid cause of rescission by the other party, depends upon the intention of the parties as gathered from a fair Honck court shows that he cannot. 2. Matthews Glass Co. v. Burke, 162 Ind. 608. "In many cases of contracts to supply a quantity of goods to be delivered within a fixed period the whole quantity cannot, from the very nature of the case, be delivered at one time." As, for instance, to supply provisions for the army and navy. The Colonial Insurance Co. of New Zealand v. Adelaide Marine Insurance Co. (1886), 12 App. Cas. 128, 138, 139. 3. Rock Island, S. & D. Works v. Moore-Handly Hardw. Co., 147 Ala. 581; Tucker v. Billing, 3 Utah, 82; Bennett v. Taylor, 72 Kans. 598; Wilce Co. v. Kelly Co., 130 Mich. 319; Felsberg v. Moore, 84 Ark. 399; Ebbw Vale Steel Co. v. Blaine Iron Co. (1901), 6 Com. Cas. 33 C. A. (express contract under English Sale of Goods Act). Courts have decided continuing or installment contracts on two theories: first, that the several acts of one party are conditions precedent to the obligation of the other party to perform. Norrington v. Wright, 115 U. S. 188, 203; Cleveland Rolling Mills v. Rhodes, 121 U. S. 254, 261. And, second, that the party in default must evince an intention to abandon his contract and not to be bound by its terms. 3 Page on Contracts, § 1489, and see cases under notes 5 and 6. It is sometimes said that such contracts are entire on one side and apportionable on the other. Johnson Forge Co. v. Leonard, 3 Pen. (Del.) 342, 347, 57 L. R. A. 225. 'Of course it (the vendor) had a right to insist upon perfect performance in the future, but the plaintiff's failure to pay for the cement when the bills were due left the defendant with the right to insist at any time that this payment should be made. Such payments might be demanded as a condition precedent to the delivery of any more cement. Eastern Forge Co. v. Corbin, 182 Mass. 590, 593; Nat. Machine & Tool Co. v. Standard Shoe Machinery Co., 181 Mass. 275, 279; Stephenson v. Cady, 117 Mass. 6; Wilkinson v. Blount Mfg. Co., 169 Mass. 374." National Contracting Co. v. Vulcanite, etc., Co., 192 Mass. 247, 255. 66 Payments according to the contract were not conditions precedent to future deliveries, but notwithstanding the parties might have so conducted themselves as to release each other from the contract, and one party might have so conducted himself as to leave it at the option of the other party to relieve himself from a future performance of the contract." Mersey Steel & Iron Co. v. Naylor, L. R. 9 Q. B. D. 654; L. R. 9 App. Cas. 442. To the same effect is Maryland Fertilizing & Manufacturing Co. v.. Lorentz, 44 Md. 218. interpretation of the language of the contract and the circumstances of the case.1 Each case must be judged on its own merits; the most satisfactory statement of a general rule for the construction of this class of cases is that of Coleridge, C. J., in Freeth v. Burr: "Where the question is whether the one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do or do not amount to an intimation of an intention to abandon and altogether refuse performance of the 4. Purcell Co. v. Sage, 200 Ill. 342; Higgins v. Delaware R. R. Co., 60 N. Y. 557; Sun Publishing Co. v. Minn. Type Foundry Co., 22 Ore. 49; Benjamin on Sales, § 593. An absolute refusal of the vendor to deliver more goods under a continuing contract may justify the purchaser in refusing to make further payments, and give him a right of action for damages for breach of contract. Lehigh Zinc & Iron Co. v. Trotter, 43 N. J. Eq. 185; Reybold v. Voorhees, 30 Pa. St. 116; Forsythe v. North American Oil Co., 53 Pa. St. 168. A refusal of the buyer to receive further deliveries has the same effect. Hale v. Trout, 35 Cal. 229, 242; King v. Faist, 161 Mass. 449, 458; Cahen v. Platt, 69 N. Y. 348, 351; Bartholomew v. Martwick, 15 C. B. (N. S.) 711, 33 L. J. C. P. 145. Such repeated failures to make deliveries required by the contract as will defeat its object justifies the buyer in repudiating the contract. Bollman v. Burt, 61 Md. 415. If the purchaser does not pay for one installment under such circumstances as to give the seller reasonable ground for believing that he will be unable or does not intend to perform his contract, he is justified in rescinding it. Bloomer v. Bernstein, L. R. 9 C. P. 588, 43 L. J. C. P. 375. See Norrington v. Wright, 115 U. S. 188, and American cases cited in note 8. "The entirety may be broken by the concurrent acts of both parties so that a partial rescission may be effected. Thus when a part only of the goods have been delivered upon a contract like the present, and one party refused to complete it by delivering or accepting the remainder, the other party may then elect to treat such refusal as a repudiation or rescission of the unfulfilled part of the contract." Mansfield v. Trigg, 113 Mass. 350, 354. See Rock Island S. & D. Works v. Moore-Handly Hardw. Co., 147 Ala. 581. The vendee refused to accept the first installment of a lot of hides on the ground that they were not of the specified quality, and directed the vendor not to send any more; the vendor received back the hides which were in fact of the agreed quality, and sold them at a loss. Held, that the contract was not mutually rescinded. McLean v. Richardson, 127 Mass. 339. The rule of law is that where there is a contract in which there are two parties, each side having to do something, if you see that the failure to perform one part of it goes to the root of the contract, it is a good defense to say 'I am not going on to perform my part of it when that which is the root of the whole and the substantial consideration for my performance, is defeated by your misconduct."" Lord Blackburn in Mersey Steel Co. v. Naylor & Co. (1884), 9 App. Cas. 434, 443. 5. L. R. 9 C. P. 208, 213. Approved in Mersey Steel Co. v. Naylor (1884), 9 App. Cas. 434 (leading case). |