struments which, combined, do his plowing. The company sold him what they warranted to be just such an implement or combination of implements as would do the work he wanted done, and took his notes, aggregating $2,785, in payment. The combination was worthless to Duncan, and the company knew it to be worthless; yet it asked the court for judgment for the full amount of the notes with interest. Duncan asked the court for release

from liability on the notes and for damages caused by the fraud.

The issues involved were submitted to the jury by the court, the jury returned a verdict in favor of the defendant, and upon such verdict the court rendered judgment. We find no substantial error in the record.

The judgment is affirmed. Petition for rehearing denied June 10, 1919.

1445.

IV. Estoppel as to character of instrument, 1449.

As indicated by its title, this note is limited to cases involving the question as to the divisible character of contracts for the sale of an outfit, plant, or machinery. As to the divisibility of a contract for the sale of goods, generally, see note appended to Stearns Salt & Lumber Co. v. Dennis Lumber Co. 2 A.L.R. 643; and as to contracts to furnish material for particular construction, see note appended to Kelly Constr. Co. v. Hackensack Brick Co. 2 A.L.R. 687. The general rules developed in the foregoing notes are applicable to contracts for the sale of an outfit, plant, or machinery. The, application of these rules, however, to the latter class of contracts, is sufficiently distinctive to make it of value to consider the cases separate and distinct from cases of sales generally.

It should be observed that the present note, like the earlier ones, is confined to the question whether the contract is entire or divisible, and does not undertake to deal with the ultimate rights or obligations that may be deduced from the character assigned to the contract in this regard. The ultimate question involved has, however, in some cases, been referred to because of the reflex influence it may

have exerted on the preliminary question.

I. General rule-entirety of use.

As pointed out in the foregoing notes, the intention of the parties as to the divisibility or entirety of a contract for the sale of more than one article is the test. The more serious question is to determine the intention of the parties in a particular case. As applied to an outfit, plant, or machinery, it may be said to be the general rule that a contract is entire when it is for the sale of several articles of machinery, or a plant or outfit, and the use of each separate article is required for the successful operation of the whole.

This holding is based upon the general rule that where part of the consideration for the sale or purchase is the receipt by the purchaser of all the articles included in the contract, and he would not have entered into it for a portion only of such articles, the contract will be construed to be entire; at least to the extent of permitting the purchaser to rescind it or refuse to receive part only of the property for breach of the contract either as to quality of one of the articles or for failure to tender all of them.

United States.-Aultman v. McFallon (1882) 11 Fed. 836.

Arizona.-Boyd v. Second Hand Supply Co. (1912) 14 Ariz. 36, 123 Pac. 619.

Georgia. Harden v. Lang (1900)

110 Ga. 392, 36 S. E. 100; Georgia Supply Co. v. Coffee (1911) 8 Ga. App. 502, 69 S. E. 1083.

Illinois. Kingman v. Meeks (1894) 56 Ill. App. 272.

Indiana.-National Bank & Loan Co. v. Dunn (1886) 106 Ind. 110, 6 N. E. 131.

Iowa.-Robinson v. Berkey (1900) 111 Iowa, 550, 82 N. W. 972; Inman Mfg. Co. v. American Cereal Co. (1904) 124 Iowa, 737, 100 N. W. 860. Maryland.-Morrison v. Baechtold (1901) 93 Md. 319, 48 Atl. 926.

Missouri.-Palmer v. Reeves (1909) 139 Mo. App. 473, 122 S. W. 1119, subsequent appeal (1912) Mo. App. -, 142 S. W. 1080.

Nebraska.- McCormick Harvesting Mach. Co. v. Courtright (1898) 54 Neb. 18, 74 N. W. 418.

New Jersey. Smith v. York Mfg. Co. (1895) 58 N. J. L. 242, 33 Atl. 244.

North Dakota.-Nichols & S. Co. v. Charlebois (1901) 10 N. D. 446, 88 N. W. 80.

Oklahoma. The reported case (HART-PARR Co. v. DUNCAN, ante, 1434).

Oregon. Sun Pub. Co. v. Minnesota Type Foundry Co. (1892) 22 Or. 49, 29 Pac. 6.

South Dakota.-Baskerville v. Johnson (1905) 20 S. D. 88, 104 N. W. 913. Canada.-J. I. Case Threshing Mach. Co. v. Fee (1909) 2 Sask. L. R. 38.

Upon this point, Harden v. Lang (1900) 110 Ga. 392, 36 S. E. 100, holds that a contract is entire where it is for the sale of different articles of machinery which together constitute a complete outfit, and the failure of the seller to deliver the necessary articles belonging thereto and included in the contract entitled the purchaser to rescind the contract as to all the articles. Followed in Georgia Supply Co. v. Coffee (1911) 8 Ga. App. 502, 69 S. E. 1083.

A contract has been held to be entire where it is for the sale of a threshing outfit; and hence a defect in one machine entitles the buyer to rescind as to all. Kingman v. Meeks (1894) 56 Ill. App. 272; Nichols & S. Co. v. Charlebois (1901) 10 N. D. 446, 88 N.

W. 80; Baskerville v. Johnson (1905) 20 S. D. 88, 104 N. W. 913.

And Aultman v. McFallon (1882) 11 Fed. 836, holds that a contract for the sale of a steam engine and threshing machine for a designated sum is an entirety, and the purchaser is not bound to accept either of the machines if one of them fails to meet the warranty, and an acceptance of one of the machines is an acceptance of both.

So, J. I. Case Threshing Mach. Co. v. Fee (1909) 2 Sask. L. R. 38, holds that a contract for the sale of a secondhand engine and a new separator and other accessories making a complete threshing outfit is entire although the contract for the sale of the engine was executed in a different instrument from that of the other machinery, and the purchaser is entitled to reject the entire outfit where the engine does not comply with the description of it in the contract.

In Robinson v. Berkey (1900) 111 Iowa, 550, 82 N. W. 972, it is held that a contract for the sale of a huller and weigher is entire, and the seller is entitled to rescind as to both articles for a defect in one.

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Palmer v. Reeves (1909) 139 Mo. App. 473, 122 S. W. 1119, subsequent appeal in (1912) Mo. App. -, S. W. 1080, holds that a contract for the sale of a clover huller and stacker and feeder is not divisible, and the purchaser may rescind it as to the entire outfit for breach of warranty as to one part.

In McCormick Harvesting Mach. Co. v. Courtright (1898) 54 Neb. 18, 74 N. W. 418, it is held that a contract for the sale of a harvesting machine with a bundle carrier attached is entire, and for the failure of the seller to deliver the carrier, the purchaser is entitled to rescind the entire contract.

In Boyd v. Second-Hand Supply Co. (1912) 14 Ariz. 36, 123 Pac. 619, it is held that the sale of a pumping plant for a designated amount where the plant includes pipe or a pipe line and engine and a pump is entire, and if the seller refuses to deliver a material part of the articles comprising the plant, the purchaser may rescind the

!

contract and reject the articles offered. To the same effect is Georgia Supply Co. v. Coffee (1911) 8 Ga. App. 502, 69 S. E. 1083, holding that a contract is entire where it is for the sale of different articles constituting a pumping outfit, and a failure to furnish any of the necessary articles entitles the purchaser to rescind the contract as a whole.

National Bank & Loan Co. v. Dunn (1886) 106 Ind. 110, 6 N. E. 131, holds that a contract is entire where it is for the sale of an engine and belt, and if the purchaser has grounds for rescinding the sale as to the engine, he can also rescind it as to the belt.

And Smith v. York Mfg. Co. (1895) 58 N. J. L. 242, 33 Atl. 244, holds a contract to furnish a boiler and chimney stack to be entire, and upon the rescission of the contract for defects in the boiler, the buyer may also rescind as to the stack.

In Sun Pub. Co. v. Minnesota Type Foundry Co. (1892) 22 Or. 49, 29 Pac. 6, it is held that a contract for the sale of a printing outfit is entire, and for the failure of the seller to tender a delivery of the character of type specified in the contract, the purchaser may refuse to receive any part of the articles. And see Inman Mfg. Co. v. American Cereal Co. (1904) 124 Iowa, 737, 100 N. W. 860, holding to be entire a contract for the sale of a complete printing press, and that where certain parts do not comply with the contract, the purchaser may reject the whole.

II. As affected by question whether price may be apportioned.

As pointed out, the general rule is that the dependency of the one article upon the other to render the entire subject-matter of the sale useful for the purpose for which it was purchased is the test to determine the intention of the parties with reference to the character of the contract, as to its being entire or divisible, since it is clear that if there is a dependency of the different articles in order to the successful operation of the whole, the intention of the buyer was to receive the whole, and no severable part thereof. Other tests, however,

have been applied which, while perhaps they are valuable aids in determining the intent of the parties, yet they may be inconsistent with the rule stated, and where given a controlling influence, may lead to inconsistent results. One rule for determining the intention of the parties as to the character of the contract with reference to its entirety or divisibility is, that if the articles are sold for a gross sum without being subject to apportionment, the contract will be construed to be entire. Kingman v. Meeks (1894) 56 Ill. App. 272; Robinson v. Berkey (1900) 111 Iowa, 550, 82 N. W. 972; Palmer v. Reeves (1909) 139 Mo. App. 473, 122 S. W. 1119, subsequent appeal (1912) Mo. App. 142 S. W. 1080; Nichols & S. Co. v. Charlebois (1901) 10 N. D. 446. It is, however, clear that the fact that the articles are sold for a gross sum is not necessarily conclusive as to the character of the contract in this regard, providing the same may be apportioned to the different articles. Aultman & T. Co. v. Lawson (1897) 100 Iowa, 569, 69 N. W. 965; Berlin Mach. Works v. Miller (1910) 59 Wash. 572, 110 Pac. 422.

For example, the latter case holds that the implication arising from the sale of two machines for a gross sum is overcome by other terms of the contract, showing that one of the machines was sold without an express warranty, and the other upon approval after trial.

In Berlin Mach. Works v. Miller (Wash.) supra, the contract was for the purchase of two different saws,-a band resaw and a ripsaw for a gross sum. It was nevertheless held that the contract was divisible in the sense that acceptance of one saw did not constitute an acceptance of both. In this case, while the court gave due weight to the fact that the purchase price was a gross sum, it was nevertheless held not to be controlling in view of the fact that the machines were sold under entirely different agreements, and the further fact that effect could not be given to specific provisions of these agreements if the contract were construed to be entire.

In Wernli v. Collins (1893) 87 Iowa, 548, 54 N. W. 365, the contract was for the sale of a windmill, pump, tower, and well, and necessary conducting pipes, for a gross sum. This contract was construed to be entire, and the buyer held entitled to rescind on the ground that the pump failed to secure the supply of water the seller had guaranteed it would.

The fact that the different articles going to make up the outfit or plant are separately priced may lead to the inference, not at all conclusive, that the intention of the parties was to make a divisible contract.

In Flather v. Economy Slugging Mach. Co. (1902) 71 N. H. 398, 52 Atl. 454, it is held that where a contract provides for the construction of a sample machine and a designated number of others, each to be paid for as delivered, the contract is divisible in the sense that the right of action accrues for the purchase price of each machine upon its completion and delivery.

In New Hamburg Mfg. Co. v. Klotz (1905) 6 Terr. L. R. (Can.) 323, affirmed in (1906) 7 Terr. L. R. 319, the contract was for the sale of a windstacker and a chaffblower to be attached to a different make of machine. On the ground that the use by the purchaser was divisible, it was held that the fact that the parties were unable to attach the chaffblower would not relieve the buyer of his liability for the windstacker, provided that as to that the seller had fully performed his contract.

On the other hand, the fact that the price is apportioned to each article does not conclusively show that the contract is divisible. Inman Mfg. Co. v. American Cereal Co. (1904) 124 Iowa, 737, 100 N. W. 860; Morrison v. Baechtold (1901) 93 Md. 319, 48 Atl. 926.

In Inman Mfg. Co. v. American Cereal Co. (Iowa) supra, in holding that the question whether or not a contract for the sale of machinery is entire or severable depends upon the intention of the parties, as manifested by their acts and by the circumstances of each particular case, the court said that the

fact that separate prices were fixed upon for different machines is not necessarily controlling. The price of each machine may be designated, the aggregate amount computed, and the contract may nevertheless be construed to be entire. For example, where machines constitute a complete plant or an indivisible system, and the contract expressly provides that the machines shall satisfy the purchaser, it is entire although the price is apportioned to each machine.

In Morrison v. Baechtold (Md.) supra, the court said it was entirely proper and natural that the plaintiffs should, in their proposition, state separately the numbers of the dynamos in lamps, in order that the defendants might better judge of the fairness and reasonableness of the aggregate price. But it would be unreasonable merely because a separate price had been named, to stamp the contract as severable.

III. Effect of limited warranty clause.

It has been held that where there are express warranties which are limited to a specific article comprising a part of the outfit or plant, the contract is divisible, and the purchaser cannot rescind the contract as a whole for a breach of the warranty as to some specific article, especially where there is a particular provision in the contract that any breach of warranty of one part shall in no manner avoid the binding effect of the contract as to the other parts of the outfit, and that in case part of the outfit was defective, that part only could be returned, subject to the option of the seller. Aultman & T. Co. v. Lawson (1897) 100 Iowa, 569, 69 N. W. 865; Nichols & S. Co. v. Wiedemann (1898) 72 Minn. 344, 75 N. W. 208, 76 N. W. 41; Northwest Thresher Co. v. Mehlhoff (1909) 23 S. D. 476, 122 N. W. 428; Reeves v. Block (1913) 31 S. D. 60, 139 N. W. 780; New Hamburg Mfg. Co. v. Klotz (1905) 6 Terr. L. R. (Can.) 323, affirmed in (1906) 7 Terr. L. R. 319; Nichols & S. Co. v. Chase (1899) 103 Wis. 570, 79 N. W. 772.

In Northwest Thresher Co. v. Mehlhoff (1909) 23 S. D. 476, 122 N. W. 428, the contract was for the sale of a

threshing outfit at a stated price for each article. It was specifically provided that a breach of the warranty as to one part should not affect the contract as to other parts. There was also a provision requiring the buyer to give notice of any breach of warranty, and for the return of the defective article. In this regard the buyer was required to give immediate notice to the seller, and the latter was entitled to either furnish another part or require the return by the purchaser of the remainder of the outfit or machinery, thereby rescinding the contract pro tanto, or in whole, as the case may be. This contract was held to be divisible. The court pointed out that the defendants had no right whatever at that time to rescind the sale, but they were bound to return the defective rig or parts thereof to the place where they got it, and notify the seller of such return, and then the latter could elect to return the notes or replace the defective machinery with cthers. The court said that "the contract or order in this case was divisible in its nature. Each separate part of the threshing rig had a price fixed thereon; the items for the several parts going to make up the total consideration for the rig. The order provided that any breach of warranty as to one part should in no manner affect the binding effect of the order as to the other parts of the rig, and that, in case part of the rig was defective, that part only could be returned, except at the option of the plaintiff."

In Aultman & T. Co. v. Lawson (Iowa) supra, the contract was also for the sale of a threshing outfit, under a similar warranty to that involved in the preceding case, and the same result was reached. The court said: "It will be observed, however, that the contract as to the thresher and as to the engine are separately expressed, and that the failure of either 'to fulfil its warranty shall not in any way affect the payment of the purchase price of any other part or parts of said establishment.' While it required both engine and thresher to make a complete establishment, either could be used with another engine or

thresher; and hence the provision that a failure of one should not affect payment for the other. True, the consideration is stated in 'one lump sum,' but the evidence shows that sum was the aggregate of prices agreed upon as to the different parts. The contract does not show the prices on different parts, but, being silent on that subject, it was competent to prove what the agreement was in that respect, such proof not being in contradiction of the contract."

A similar result was also reached as to a similar warranty in the sale of a threshing outfit in Nichols & S. Co. v. Wiedemann (1898) 72 Minn. 344, 76 N. W. 41. In this case the court said: "Our first impressions were that the contract was indivisible, because the machinery, constituting the subjectmatter of the contract, consisted of but one entire threshing outfit, the whole thereof being absolutely essential for the purpose for which it was purchased at a gross price. Neither the engine nor the separator could be operated without the attachments belonging to them, respectively, and it seemed to be unreasonable and unjust to hold that, if the engine and separator failed to comply with the warranty, the defendant might rescind as to them, but must keep and pay for the (to her) worthless attachments. But a more careful examination of the contract satisfies us that the parties thereto expressly stipulated that it should be divisible. It was competent for them to so contract. The outfit consisted, as stated in the contract, of an engine, separator, stacker, feeder, water tank, pump, hose, and elevator, and the contract contained these stipulations: 'If any part of the machinery cannot be made to fill the warranty, that part which fails shall be returned, with the option of the company either to furnish another machine or part in place of the machine or part so returned, . . and thereby rescind the contract to that extent, or in whole, as the case may be, and be released from any further liability herein. The failure of any separate machine or any part thereof shall not affect the contract or liabil