Plaintiffs, as copartners, sued to recover the purchase price of a carload of lumber sold to defendant, and shipped from the State of Mississippi to St. Louis, Missouri. Defendant ordered the lumber through brokers, which order was received by plaintiffs *Page 78 about February 20, 1918. The order was for "1 Car 2× 12-20 No. 1 S. E. — $28. Terms Regular. Delivered." Plaintiffs acknowledged receipt of this order in a letter to defendant, dated February 20, 1918, in which they state that the official specifications of the Southern Pine Association were to apply, and in case of a dispute over the grades or tally, an official inspection by such association should be taken as a basis for settlement, all claims to be filed within five days from receipt of stock and all lumber to be held intact until inspection and settlement was made. Defendant was also informed in this letter that if plaintiffs were unable to get a "42'" car, they would make two loads. The lumber was shipped in two cars. One car arrived on March 8, 1918, and one on March 9, 1918. Defendant rejected a part of this lumber on the ground that some of it was No. 2 grade instead of No. 1, and that there were some "culls."
Plaintiffs brought suit to recover the full amount of $515.20.
Defendant, in its answer, set up the fact that some of the lumber was defective, and that it was compelled to go out and buy the additional lumber of the grade called for by the contract, which cost $50 more than the original contract price for the same lumber from plaintiffs, and asked damages for $50. Defendant also claimed $36 as storage charges, and $15 for unloading and restacking the defective lumber.
On the trial of the case, the court, after refusing certain declarations of law asked by plaintiffs, entered its finding and judgment for plaintiffs for $264.33, and for defendant on its counterclaim for $83, leaving a net judgment of $181.33 for plaintiffs. Plaintiffs offered the following declarations of law, which the court refused to give:
"I. The court declares, as a matter of law that the defendant cannot rescind its contract of sale in part and that under the law and the evidence in this case the defendant will be held to have accepted the car of lumber delivered by the plaintiff, by the acceptance of the portion *Page 79 of the car, which the defendant admitted in the evidence it accepted, and the judgment will, therefore, be in favor of the plaintiff on the plaintiff's cause of action and in favor of the plaintiff upon the defendant's counterclaim."
"II. The court declares, as a matter of law, that the defendant's damages on the counterclaim would be limited to the difference between the actual value of the goods delivered and what such goods would have been worth at the time of the sale if they had complied with the terms of the contract, and the Court declares there was no evidence offered by the defendant to prove these facts, and, therefore, the defendant would be limited to the recovery of nominal damages on its counterclaim."
The principal question for our determination, on this record, is whether or not the contract between the parties was severable, or, to state it in another way, could defendant accept a portion of this lumber, and reject the other on the ground that such lumber so rejected was of an inferior quality or grade. After a careful examination of the authorities in this State and elsewhere, we are of the opinion that under the facts of this case the contract was not severable, and defendant could not accept a portion of this lumber and reject a portion. While it is possible to distinguish many of the cases holding such a contract to be entire as affecting the right of the buyer to accept part of the goods and reject the balance, from the cases holding the contract to be severable in this regard, many of them cannot be distinguished. The general tendency of the courts is apparently to construe contracts of this character to be entire, to the extent of requiring the buyer either to take all of the goods included therein, or reject them all, unless the contract in its nature is clearly apportionable. [Pacific Timber Co. v. Iowa Windmill Pump Co., 135 Iowa 308; Sigerson v. Harker,15 Mo. 101; Hermann Lumber Co. v. Heidelburg, 46 Misc. (N.Y.) 465; Perry v. Ayers, 159 Cal. 414; Harzfeld v. Converse, 105 Ill. 534; Woodruff v. Peterson, 51 Barb. (N.Y.) 252; Levy v. John C. Dettra Co., 91 Misc. (N.Y.) 41; Syme-Eagle Co. v. Joplin Grocer Co., ___ Mo. App. ___. 229 S.W. 246.] *Page 80
The Supreme Court of Michigan, in a very similar case to the one here, held the contract to be severable. [Stearns Salt Lumber Co. v. Dennis Lumber Co., 188 Mich. 700.] However, three members of the court dissented in that case.
The case of Pacific Timber Co. v. Iowa Windmill Pump Co., supra, holds a similar contract to be entire, and not severable, and the rule therein announced for determining the question of whether or not such contracts are entire or severable, is the one generally followed by the courts throughout this country. It is there stated:
"As a general rule, it may be said that a contract is entire, when by its terms, nature, and purpose, it contemplates and intends that each and all of its parts and the consideration shall be common each to the other and `interdependent.' On the other hand, it is the general rule that a severable contract is one in its nature and purpose susceptible of division and apportionment. The question whether a given contract is entire or separable is very largely one of intention, which intention is to be determined from the language the parties have used and the subject-matter of the agreement."
We do not think it reasonable to hold that the parties contemplating the shipment of this carload of lumber (which in the present case was divided and shipped in two cars) intended that each piece of timber so shipped should constitute the basis of a separate and independent contract, so that the defendant could reject a part of the lumber and retain the balance.
In Sigerson v. Harker, supra, it was held that the purchaser of a quantity of pork barrels could not select such as he claimed complied with the contract, and reject the balance for a breach of warranty of quality. SCOTT, J., speaking for the court, said:
"Such a course, in most cases, would prejudice the sale of the rejected articles. The separation would diminish the probability of a sale of them. A good article may sell a bad one, and many good ones may frequently carry along with them a few that are indifferent." *Page 81
This is not a case where the goods were to be shipped in installments, nor is there anything to indicate that the shipper knew that the lumber was to be used for a particular purpose.
It is evident that the trial court proceeded upon an erroneous theory of the law.
The Commissioner recommends that the judgment be reversed and the cause remanded.