¶11. Severable Contract—Tendee of Paet Performance—Refusal to Accept—Afbtdavit of Defence.
¶2A. contracted to deliver to B. 700 tons of rails, to be shipped from Europe, in February, in ono or more vessels, each cargo to he paid for on delivery. A. shipped one cargo of 342 tons, which arrived in May, but B. refused to accept it. In a suit brought by A. against him, B. filed an affidavit of defence setting forth that A. had not shipped the residue at the time he tendered the tost cargo, and had never intended to ship them. Held, a sufficient defence.
¶3Rule for judgment for want of a sufficient affidavit Of defence.
¶4This was an action of assumpsit by Havemeyer & Yigelius against Peter Wright & Sons. Plaintiffs filed a copy of the following contract:
¶6With the above was filed a copy of invoice presented to defendants June 7,1880, for 342 700-2240 tons at $43.50,— $14,890.59,—with United States certificate of weight; imported in ship Livingston, which arrived May 8, 1880.
¶7*774Defendants filed an affidavit of defence setting forth inter alia—
¶8“Before the tender of the delivery of the goods for which this action is brought the defendants had ascertained that the plaintiffs did not intend to comply with their contract, a copy of which is filed in the cause, in this: that the residue of the 700 tons old Trails mentioned in the contract had never been shipped by plaintiffs, nor were ever intended by them to be shipped or delivered to defendants; and they knew this when they sought to make defendants accept and pay for a part of the goods agreed to be bought and sold for this reason. When the delivery was tendered of the goods for the price of which this action was brought, the same were rejected and refused by the defendants. ”
¶9Samuel G. Perkins, for the rule.
¶10The contract is severable, and plaintiffs are entitled to recover the price of the cargo for which suit is brought. Scott v. Kittanning Coal Co. 89 Pa. St. 231; Morgan v. McKee, 77 Pa. St. 228; Lucesco Oil Co. 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. Howard, 13 How. 307; Perkins v. Hart, 11 Wheat. 237; Sickels v. Pattison, 14 Wend. 257.
¶11R. C. McMurtrie, contra, was not called upon.
¶14Beyond all question this is an entire contract, and to hold that tender of a part takes away the right of rescission, when the affidavit says that there was not only an impossibility of delivery as respects the balance but an intention not to deliver, would be to go beyond anything that, the English courts have held.
¶15’ Buie discharged.