Barlow Mfg. Co. v. Stone

• Decision Date: 24 November 1908
• Citation: 200 Mass. 158,86 N.E. 306
• Parties: BARLOW MFG. CO. v. STONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 158

86 N.E. 306

BARLOW MFG. CO. v. STONE.

Supreme Judicial Court of Massachusetts, Hampden.

November 24, 1908

COUNSEL

N. P Avery, for plaintiff.

Frank A. Pease, for defendant.

OPINION

MORTON J.

This is an action of contract to recover upon an account annexed for certain store fixtures and furniture furnished by the plaintiff to the defendant. At the same time that the goods described in the account were ordered, certain wall cases were also ordered by the defendant of the plaintiff, and the defendant paid $25 on account on all of the goods ordered. The articles in suit were delivered to and accepted by the defendant and no fault is found in regard to them as to price, quantity or quality, or the time of delivery. Nor is any fault found as to the price, quantity or quality of the wall cases. But the defendant contends that it was agreed that all of the articles should be delivered promptly, that the wall cases were not so delivered, and that he was damaged thereby and is entitled to recoup in this action the damages thus sustained. There was evidence tending to show that the wall cases were to be ordered by the plaintiff from Michigan, and were so ordered, and were delivered to and accepted by the defendant and were paid for by him pursuant to a draft therefor with a bill of lading attached, drawn on him by the plaintiff.

The defendant concedes that the right to recoupment does not extend to any transaction which is not involved in this suit. But he contends that the purchase of the goods, including the wall cases as well as those in suit, constituted an entire contract which has not been severed by the act of the parties or otherwise, and that he therefore can recoup in this action the damages sustained by reason of the failure of the plaintiff to deliver the wall cases promptly as agreed. The first question therefore is whether the contract was or was not an entire contract. If the contract was an entire one and there has been no severance of it, then the right to recoup is clear. If it is not an entire contract, then it is equally clear that no right of recoupment exists. Sawyer v Wiswell, 9 Allen, 39.

Primarily the question whether a contract is entire or separable is one of intention. But the general rule is that where the part to be performed by one party consists of several distinct and separate items and the price to be paid is apportioned to each item according to the value thereof and not as one unit in a whole, or a part of a round sum, the contract may and will be regarded as severable. And this holds true, even though the contract may be in a sense entire, if what is to be paid is clearly and distinctly apportioned to the different items as such, and not to them as parts of one whole. West End Mfg. Co. v. Warren Co., 198 Mass. 320, 84 N.E. 488; Young & Conant Mfg. Co. v. Wakefield, 121 Mass. 91; Robinson v. Green, 3 Metc. 159; Miner v. Bradley, 22 Pick. 457; Badger v. Titcomb, 15 Pick. 409, 26 Am. Dec. 611; Pierson v. Crooks, 115 N.Y. 539, 555, 22 N.E. 349, 12 Am. St. Rep. 831; 2 Parsons on Contracts (9th Ed....