I concur in the foregoing opinion of Judge BRADLEY, but will add the following to what he has said:
In this case, a large number of cases of canned corn were sold by defendant to plaintiff in one transaction Each case contained two dozen cans, and the price was 75 cents per dozen cans. Defendant contends that this is one entire contract, and, if rescinded at all, it must be rescinded in toto, while plaintiff contends that it is divisible, and that part of the cases of corn could be retained and the contract rescinded as to the remainder.
Whether or not a contract for the sale of goods is divisible so that a part may be retained by the purchaser and *Page 370 the contract rescinded as to the remainder does not depend solely on the divisibility of the consideration, but also depends largely on the terms of the contract itself. [Clark v. Baker, 5 Metc. (Mass.) 452.]
In this case the amount to be paid for each case of corn could be readily ascertained, but it cannot be said that each case was separately sold. If this contract is divisible because of the divisibility of the consideration, then it must be divided by the dozen cans, for the price was fixed by the dozen cans, and not by the case, and certainly the purchaser could not break a case and take out one dozen cans and return the other dozen. It has been held that if articles are sold and a separate price fixed on each article, though all sold in one transaction, then a part may be retained and the contract rescinded as to the others. [Young C. Mfg. Co. v. Wakefield, 121 Mass. 91.] But when a certain quantity of goods, or a certain number of similar articles, are purchased as one transaction, the price being fixed by a measure or by one article, and the measuring or counting is done solely for the purpose of ascertaining the total amount to be paid, then the contract is entire and, ordinarily, if rescinded at all, must be rescinded in toto. [Mansfield v. Trigg, 113 Mass. 350; Morse v. Brackett, 98 Mass. 205.]
I think this contract was entire, and, as rescission in toto cannot be made, and insolvency not being alleged or shown, and no other reason appearing why a court of equity should interfere, I agree that plaintiff cannot recover in this action.