The action is by the plaintiff, as the assignee of Luckmeyer, Shefer & Co., to recover $758.86 for. twenty pieces of Helvetia 'delivered to the defendant November 18, 1886. ■ The ■defense is that the goods, were but a partial delivery under entire and indivisible contracts made on'August' 12 and 18, 1886, for a much larger quantity, and that payment was not to be made until after full performance, which was a condition precedent. .
There is no principle more firmly established in our jurisprudence than, that under an entire contract there is no right of .action, and can be no recovery until the entire quantity contracted for is delivered, Mead v. Degolyer, 16 Wend. 632; Champlin v. Rowley, 18 id. 187; Ming v. Corbin, 32 N. Y. St. Repr. 1002; Smith v. Brady, 17 N. Y. 173; Baker v. Higgins, 21 id. 398; Catlin v. Tobias, 26 id. 217; Kein v. Tupper, 52 id. 550; Butler v. Butler, 77 id. 472; Nightingale v. Eiseman, 121 id. 288. The defense was made on the assumption that the contracts of August. 12 and 18 were subsisting obligations, and . that the delivery made was in part performance thereof. But exhibit 5 shows that a new understanding was had and reduced to writing October 22, 1886, by which the defendant was to receive, on November 1, “ 20 pieces Helvetia, according to sample, 44 inches; 20 pieces Helvetia, according to sample, 48 inches. Further, in the course of November, additional 10 pieces, 44 inche?; 10 pieces, 48 inches,” etc. The writing then contains the significant sentence: “This disposes of the old contract; ” which, interpreted according to the obvious intention of the parties, means that, in consideration of the new agreement, the orders of August 12 and 18 were canceled, and they may, for this reason, be- regarded as out of the case.
It is sometimes difficult to determine what constitutes an entire ■contract, for there is a class -of mixed cases partaking of -the character both of entire contracts and of severable contracts, in which, although a certain definite number or quantity of things are bought together, the price is fixed "either by a certain agreed rate, to be paid per single article or measure, or by affixing a particular valúa-, tion to each thing, if the things be of different kinds. Story on Sales, § 243. Or, as another writer states it: “No precise rule can be given by which this question, in a given case, may be settled. *451Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract.” 2 Pars, on Gont. (6th ed.) 517. Indeed, the entirety or divisibility of several items in one contract is always a question of intent and frequently one of fact. Ming v. Corbin, 142 N. Y. 334. In the case cited, the court (at pp. 340, 341), in reiterating the rule that “ a contract is entire when the parties intend that the promise by one party is conditional upon entire performance of his part of the contract by the other party,” observed: “ The contract is said tO.be severable when the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item or is left to be implied by law.”
The plaintiff proved that, prior to the delivery of the twenty pieces in Eovember, 1886, the defendant was informed that they constituted all the Helvetia the plaintiff’s assignors had in stock, and that no more could be expected until the following January or February, when they hoped to obtain the remainder. The defendant, therefore, knew that the delivery of the twenty pieces was complete in itself, and as no different, time for payment-had been specified, the 'price became due by operation of law immediately after their delivery. Sickels v. Pattison, 14 Wend. 258; Benj. on Sales (1st Am. ed.), ■§ 314. In this respect, the case differs from Eightingale v. Eiseman, supra, and other authorities relied on by the defendant.
The writing of October 22, 1886, signed by the defendant, contains the following: “As soon as I receive the above-mentioned 40 pieces of Helvetia, I bind myself to. pay 'with them 40 pieces of Gloria I received October 18th, amounting to $1,278.93, after deducting 7 per cent, discount.” After receiving the twenty pieces, to recover the price of which the action is brought, the defendant paid the $1,278.93, which is significant as tending to show that the delivery was made under the. circumstances regarded by him as a satisfactory performance of the order he had given. The acts or consent of parties may make an entire contract divisible! Winne v. McDonald, 39 N. Y. 233; Stokes v. Recknagel, 38 N. Y. Super. Ct. 368.
In Tipton v. Feitner, 20 N. Y. 423, the plaintiff, in one agreement, contracted to deliver forthwith a quantity of dressed pork to the defendant for a certain price, and also to sell bim upon their *452arrival, at a different priee, a number of..lives hogs, then on their way, and expected in a few days; no stipulation being made as to the time of payment for either. The pork was delivered, but the plaintiff violated his contract by not delivering the live1 hogs; held that this did not preclude him from recovering the price of the dressed pork, subject to recoupment for the defendants damages from the breach of contract as to the live hogs. See also Swift v. Opdyke, 43 Barb. 274.
Here the price of the twenty pieces delivered was conceded to be $758.86, and this eliminates questions which might have'-arisen if an aggregate value only had. been fixed.
True, the defendant was not bound to accept-a delivery of twenty pieces only, if not in accordance with the understanding of ■ the parties. He had a right to. reject or retain-them, as he saw fit; Yet, if he elected to accept the part delivered, appropriated the same to his own use, and by his acts evinced a waiver of the condition as to entire delivery, he then became liable to pay for what was actually delivered. Sickels v. Pattison, 14 Wend. 258; Brady v. Cassidy, 9 Misc. Rep. 107; aff’d, 145 N. Y. 171; O'Neill v. Crotty, 34 N. Y. St. Repr. 764; Avery v. Willson, 81 N. Y. 341.
The correspondence.between the, parties shows that the defendant did not expept to avoid'payment for the-goods delivered, except by recouping his damages for nondelivery of the remainder. • He put himself squarely upon this position, which is entirely “ in-' consistent with the claim, now made that he is not liable at all.” Avery v. Willson, supra. If the attitude he assumed was warranted by Ms understanding of the facts, the defendant should-have recouped his 'damages for nondelivery of ■ the other piece's; for this, according to the. rulings in Tipton v. Feitner and -.Avery v. Willson, supra, was the only course then available to him. For some unexplained reason, however, he did-not see fit to invoke' this means of defense.
Hpon the record, the plaintiff is entitled to judgment for' $1,175.60, the amount claimed, and interest, with costs.
Judgment for plaintiff.