While I admit that the question of law involved in this case is not free from serious doubt, I have reached the conclusion that under the provisions of the Personal Property Law the defendant had a right to accept those goods which complied with the contract and to reject that portion of the goods which were of a different description.
Section 156 of the Personal Property Law defines a “ divisible contract to sell or sale ” as “a contract to sell or sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation.” That section, however, expressly limits its definitions to the meaning of the term as used in that article, and since apparently the words “ divisible contract to sell or sale ” appear nowhere else in the article, it is somewhat difficult to determine what effect can be given to this portion of the statute. The court cannot, however, presume that the legislature put into the statute a meaningless definition, and without now attempting to give a full interpretation to those words I think we have a right to assume at least that the legislature intended that where by the terms of a contract to sell or a sale the price for a portion of the goods less than the whole is fixed or ascertainable by computation the contract is to be regarded to some extent and for some purposes as a divisible contract. The words ‘ ‘ divisible contract of sale ’ ’ have previously received various definitions, and it may well be that the words *311“ divisible contract to sell -or sale ” as used in this section of the Personal Property Law should be given their strictest and narrowest definition. Professor Williston in section 464 of his work on Sales states that a divisible contract of sale, using that term properly, is “ one and entire in its origin but looking to a series of performances on one side, and equivalent counter-performances on the other, is divisible in its operation,” in accordance with the rule laid down in Barrie v. Earle, 143 Mass. 1, cited by Mr. Justice Bijur, and I agree that under such definition it does not necessarily follow that the obligations of the parties to a divisible contract do not remain single and entire, for many purposes. The courts will still enforce the intent of the parties and if the seller has agreed to deliver a certain quantity of goods, he cannot tender less than the amount he agreed to deliver and claim the agreed price for the portion tendered subject only to a counterclaim on the part of the buyer for damages for failure to deliver the remainder, nor on the other hand can the buyer accept part of a tender of the whole amount called for by the contract and reject the remainder. On the other hand, if the seller does deliver a quantity of goods less than he contracted to sell, the buyer under section 125 of the Personal Property Law has the right to accept or retain the goods so delivered; in such a case he pays for the goods, even though he knew that the seller was not going to perform the contract in full, at the contract rate, and if the price for a portion or portions of the goods less than the whole is by the contract fixed or ascertainable by computation, the contract is to that extent at least a divisible contract. In the present case, therefore, if the seller had tendered to the buyer only the two pieces of goods which were apparently in accordance with the contract the buyer *312could have accepted the tender and would have thereupon been liable for the goods accepted at the rate fixed by the contract. The fact that the seller at the same time tendered to the buyer goods which were not in accordance with the terms of the contract should not deprive the buyer of the right to retain those goods which the seller had contracted to sell him and to refuse to accept the other goods which were not in accordance with the contract. It seems to me that subdivision 3 of section 125 of the Personal Property Law was intended to cover such a contingency, and should not be limited to a case where the seller has delivered all the goods which he contracted to sell and, mixed with these goods, goods of a different description not included in the contract.
Since under the provisions- of the Personal Property Act the contract here under consideration is at least for some purposes a divisible contract to sell and since further under the provisions of that act the defendant has the right to accept and is then bound to pay for at the contract rate, the delivery of a smaller quantity of goods than the defendant agreed to sell, and since further a delivery of -a smaller quantity was made by the defendant though mixed with goods of another description, it would seem to follow that the buyer was within his rights in retaining the goods that were in accordance with the contract and rejecting the remainder. In coming to this conclusion I have not overlooked Professor Williston’s statement that if the buyer can accept some and reject others, the seller must equally be at liberty to make a valid tender of some and not of others, but I think that this objection does not apply in the present case. The seller has not the right to make a tender of less than he contracted to sell, but if he does make such a tender, the buyer has a right to accept it under the *313express provisions of the Personal Property Law. The seller has no greater right to tender a part of the goods which he contracted to sell mixed with goods of another description than he would have to tender a part of the goods alone, but on the other hand the buyer has the same right to accept delivery of the part of the goods which are in accordance with the contract when tendered to him by the seller, and to reject the remainder as if the seller had tendered only a portion of the goods in accordance with the contract.
It follows that the judgment should be affirmed, with costs.
Judgment reversed, with thirty dollars costs.