, JU.VEMEYER V. WRIGHT.

'l7lJ

HAVEME¥ER

v.

WRIGHT.-

Oourt, E. D.

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24, 1881.)

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SEVERABLE CoNTRACT-T&NDlllR' Oil' PART PER1l'OlUlANCFJ-Rl!lFUSAL

TO ACCEPT-A1rJl'WAVIT Oil' DEnNOE. "

,

1. contracted to deliver to B.700 tolls qf" rails, to be shipped from ]i:urope, in FebrUll'ry, in one or'more vessels, each cargo to ,be paid for on delivery. A. shipped one cargo of 342 tons, which arrived in May, " but B.,fp,fl,lsed to accept it. In a suit brought by A. against him, B. filed an defence setting forth that A. had, not shipped the residue at the tinie he tendered the first cargo, and never mtended to ship them. a sufficient defence. '
   

Rule for judgment for want of a sufficient ,affidavit of defence. This was an action of aB8ump8it by Havemeyer & Vigeliu8 against Peter Wright & Sons. Plaintiffs filed I], copy of, the folIo wing contract : 20th, 1880. "Sold for account of Messrs. Havemey9r & Vigelius raUs, (5 per cent., seven hundred, (700) tons old T more or less, seller's option,) for shipment from Europe to Philadelphia in 1880, and for delivery, ex vessel or vessels, on wharflnport price forty.three ·and one-haHidolla'rB ($43,50) ton of 2, U.,S. customhouse'iveights to decide quantity. ,Term!!; Spot cash, O.Jilpr.esenta#on "ofIinvoiae, ,with U. S. certi1icate of weight fqf each lop; Nameof to be givel1' to buyers as .soon a's kIiowq to sellers. . ". '·"GEO. "Broktlr. "Per GEO. H. WRIGHT. "Accepted. "PETER WRIGHT & SONS. Per M." With the above was filed a copy of invoice presented to defendants June 7, 1880, for 842 700·2240 tons at $48.50,$14,890.59,-with United States certificate of weight; imported in ship Livingston, which arrived May 8, 1880.,
-Reported by Frank P. Prichard, Esq., of the Philadelphia bar.

"70

WALL STREE'!', "NEW YORK, Jan.

. t74
Defendants filed an affida,vit of defence setting forth intC1 "Before the tenaer '(if" the 6Y the goods for which this had, that the plaintiffs did not intend to comply with their contract, a , copy of which-,is filed in -theic8Juse; in this dh'at the residue" of the 700 tons old T railsmerltiioM'd in thlf66rrtract liadnever shipped, them . to be shipped -or ,d.elivered to defendants; and they knew this - when they sought;ito'rriake' defendants accept and pay for a fo'r reapart of the-Modrd,greed. to be : was,tendsl'ed of the goods for the son. When ihe price of which this action was brought, the same were rejected and,refus\3d-.by,' the defenda'nts.," :)' Samuel C. PerkiJ1S, for the rule. The contract is and plaintiffs' entitled to recover the price ;,of. the cargo for which ElUif isbronght. Scott v. Kittanning Coal Co. 89 Pa,. St. 231; Morganv.McKee, 77 Pa. St. 228; L1J,cesco Oil ,Go. v. Brewer, 66 Pa. St. 351; note to Cutter v,Powell, 2 Smith's Lead Cas. (5th Am. Ed.) 45; P., W. ((; B. R. Co.v. HOWl£1'cl, 13 How. 307 ;'pe1'kins v. Hart, 11 Wheat. 237; 'Si'ckels v. Pa.ttisori, 14: Wend. 257. R. C. McMurtrie, contra, was not called upon; McKEN'NAN, C. J. Bey,9'nd all question this is an entire contract, and to hold thit tender of a part takes away the right of rescission, when theaffid8lvit says that there was not only an impossibility of delivery a,s respects the balance but an intention not to deliver, would be to go beyond anything that the English courts have 'held. ' Rule discharged.
alia-

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ev.er

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DOUGLASS V; L1NOOtN'

MO.

775

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'OoUdt.A:ss

11.

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COUNTY, ''IN T1rE

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STATll: lJt-

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(Qircy,it 9ourt, ;8,.

1880.)

BONr1S .:..c'i,lrssuED rj' "j , Municiplil bbnds i10t duly ";issued, "'urtl1er of , ,uqlesathe'lIal!le,!lfIV6j in the, otl1ce of the stBUl 'J ',' ,J,

are

thecdtirt, to the 'jury:as that' the'b'ondl frorii which Sb'ea; ob. Jiiie 'tille'ged' tlfhav,e n.ot" until' same ootitttetSigrieB; befote 'liy' an If; therefore, the frak efia,ence dri dlid' after f872;hy'J¥mes, to' adt as ' agerit' bf ,Lincoln cithintyuhaer lind I, 'iTirtue .au', order of. the0Mul1iy eourtohitid cOtu{ty, matleiMltj- i(j; 1872, the jury , are'instructed'thal'as' to bonds,'and'B.sto liny coupons frOm: such bonds plaIntiff cStl1l1gt'fei:l6Ver"uilless the further: find <tba' ',thltt' 'stiiq bbnds l\nd 6f t4e'stMie of ';"i, r :i [j' ' " , ' : . i ''''ohh B; ; HeWiefJ{oh ahd'J'o"fttt. 'H. ·DvMaU:' fb'tplkintiff.' i " "H;'A.. Ounnin'ghafnj';for .i,' . , 'TREAT, 'is vert clear. It is as to the bfibe as foutid' in theaet of the general as\;ginbty .. of 'Misso1lti, entitled "An act to provide for the registration of bonds issued by counties, cities, and incorporated towns, and to limit the issue thereof." Section 4 provides: "Before any bond hereafter issued by any county, city, or incorporated town, for any purpose whatever, shall obtain validity or be negotiated, such bond shall first be presented to the auditor, who shall register the same in a book or books provided for that purpose, in the same manner as the state bonds are now registered, and who shall certify, by indorsement on such bond, that all the conditions of the law have been complied with in

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