5. Quantity specified must be seller must deliver the full quantity sold as it is specified in the contract. The buyer cannot be forced to accept less or more than he has contracted to buy. Thus it was held that where a contract for the sale of goods is an entire one, and the vendor withholds any of them, the purchaser need not accept delivery of the remain ing portion, but may repudiate the agreement and recover any money paid on account of the purchase price.' When a person has purchased goods to be delivered as a whole, he need not accept them in instalments. It is his privilege to reject fulfilment of the contract in any other way than as specified. If, however, he accepts less than the goods he has contracted for, or accepts instalments thereof, he must pay for them at the contract rate. Generally speaking, if the seller delivers a larger quantity of goods than was pur chased, the buyer may accept the goods covered by the contract and reject the balance, or he may reject the whole. If he accepts all that are delivered, he must pay for them at the contract rate.
Thus if A purchases ten hogsheads of wine from B and B sends fifteen, A may consider the contract as not performed, for he is unable to tell which are the ten that are to be his, and he is not bound to make a choice of any ten hogsheads, for that would be to force a new contract upon him. The delivery of more than ten is really a proposal for a new contract. Ap parently, also, if the seller delivers the goods that have been bought with other goods not covered by the con tract, the buyer may accept the goods covered by the contract and reject the rest, or he may reject the whole.
Where a person contracted to deliver one hundred bags of hops on or about January 1, and on December 12 he delivered twelve bags in part performance of his contract, and no time for payment was mentioned, it was held that he could not demand payment for the hops delivered before the expiration of the time fixed for delivery of the The fact that the buyer in this case accepted the twelve bags would not de price him of his right to sue for breach of the contract if the remaining bags were not delivered according to the contract.
The contract may be severable. A tender of the amount of any severable part is to the extent thereof sufficient; thus an instalment contract may provide that each delivery shall constitute a separate contract, in which case each delivery will stand by itself. If the seller makes default in connection with one such in stalment, it is not as a rule open to the buyer to re pudiate the remaining instalments. Thus if the con tract is for the sale and shipment of iron ore at differ ent times, payment to be made upon delivery, and one instalment of the ore shipped does not fulfil the re quirements of the contract, the buyer is not justified, under ordinary circumstances, in refusing to accept the remaining shipments which conform to the terms of the contract. The failure of the seller to deliver a
severable portion of the goods or articles contracted for, or the failure of the buyer to take delivery thereof, may, however, give rise to the right to repudiate the contract as a whole. Benjamin, discussing the mat ter, says: A contract for the delivery of goods by instalments, tho the instalments are to be separately paid for, and the con tract is in consequence so far divisible, is, like all other con tracts, one that may be repudiated by either party if the other party refuses to perform it. But the question often arises whether a mere partial breach by either party justifies the other in repudiating the unfilled part of the contract. The rule at common law is that, in the absence of an express refusal, the question to be considered is whether the conduct of the party in fault amounts to an implied refusal to per form the contract, for it is not every breach by one party which gives to the others the right of rescission. The breach must be in a matter going to the root of the contract. Such a breach negatives the readiness and willingness of the party in fault tO be bound by the contractual relation any further, and may be accepted as an offer to rescind.
Generally speaking, it will depend upon the circum stances in each case, whether the breach in the fulfil ment of part of the contract is a repudiation of the whole, or whether it is a severable breach which gives rise to a claim for compensation, but not to a right to treat the whole contract as repudiated.
6. Quality specified must be delivered.—Not only must the seller deliver the quantity purchased, but he must deliver goods of the quality specified in the con tract. The buyer is entitled to a reasonable nity to inspect the goods, in order to determine whether they are of the quality mentioned in the con tract. The seller must, when tendering delivery, give the buyer such reasonable opportunity as he desires to examine the goods for this purpose. Ordinarily the goods will be inspected at the place of delivery. The purchaser who takes the goods for the purpose and with the intention of inspecting them does not thereby accept them; and if he finds that they are not of the quality contracted for he may reject them. In such case he is not bound to return them to the seller, tho he must allow the seller to re-take them.