Contract, Performance and breach. A Maine shipper of potatoes sold to a Boston dealer three car loads of potatoes. A "car load" according to the custom of the trade meant as many bushels as would about fill such a car as the shipper chose to load, the exact number of bushels being named in an invoice. After shipment of three carloads of potatoes, the shipper in accordance with another custom of the trade made out three drafts each covering the purchase price, less the freight, of the potatoes which he felt satisfied were in one of the cars, attached the bills of lading to the respective drafts and sent the drafts to Boston for collection. The purchaser paid one draft and received and resold the potatoes in the car corresponding to that draft. Discovering that that car contained fifty-nine bushels less than it should have contained according to the invoice, the purchaser refused to pay the other drafts or to accept the other car loads of potatoes. The shipper brought an action for the purchase price of the other two car loads. The purchaser contended that the action could not be maintained because of the shortage in the first car. Held, that the action might be maintained, the contract being entire and at no time having become severed, and rescission being impossible because the defendant had resold the potatoes in one car.
SHELDON, J.
We see no ground on which the exceptions can be sustained. The ruling asked for by the defendant could not have been given; and that is the only question presented.
The defendant's contract was an entire one for the purchase of three cars of potatoes; and it was not severed by the fact that the plaintiff shipped them at different times and drew a separate draft for the alleged contents of each car at the agreed price. We assume without deciding that upon discovering the shortage which he claimed in the load of the first car he might have declined to accept it and rescinded his contract. But he chose not to do this. Instead of doing so he accepted that car load and sold it to a customer of his own, thus putting it beyond his power to return it to the plaintiff. He could not then rescind the contract by reason of the shortage. He must seek his remedy under the contract by way of set-off or recoupment, or by an independent action. Morse v. Brackett, 98 Mass. 205. Mansfield v. Trigg, 113 Mass. 350. Barrie v. Earle, 143 Mass. 1. Obery v. Lander, 179 Mass. 125, 130. Fullam v. Wright Colton Wire Cloth Co. 196 Mass. 474, 476.
Exceptions overruled.