partnership interest could not be attached under this writ. The plaintiff then took this writ of error alleging the action of the court in making said rule absolute.

The defendant in error moved to quash the writ. Lewin W. Barringer, for plaintiff in error. defendant in error.

Alex. Simpson, Jr., for

GORDON, J. There are two reasons why the action of the court below, in dissolving the attachment in this case, cannot be reviewed on a writ of error from this court. 1. The sixth section of the act of March 17, 1869, under which the process in attachment was had, gives to the court of common pleas when in session, or to a judge thereof in vacation, a discretionary power to dissolve the attachment issued under its provisions, and the statute gives us no power to review the exercise of that discretion. 2. The proceedings are contrary to the course of the common law; they are purely statutory, hence, they can be reviewed on a certiorari only and not upon a writ of error. Lewis v. Wallick, 3 S. & R. 410; Commonwealth v. Beaumont, 4 Rawle, 366; Miller v. Sprecher, 2 Yeates, 162; Ruhlman v. Commonwealth, 5 Binn. 24; Brown v. Ridgway, 10 Penn. St. 42; Lindsley v. Malone, 23 id. 24. It follows that whatever our opinion may be as to the rectitude of the action of the court below in the premises, we are obliged to quash the writ of error.

Writ quashed accordingly.

CONTRACT

RUGG AND BRYAN v. MOORE.

October 5, 1885.

SEPARABLE OR ENTIRE RIGHT TO RESCIND.

Whether a contract is separable or entire depends upon the entirety of the consideration, or its express or implied apportionment to the several items constituting the subject. Not upon the singleness of its subject or the multiplicity of the items composing it.

Defendant's witnesses, in an action for breach of contract, testified that he sold the plaintiff six car-loads of corn, deliverable at different times, for a price per bushel, payable by sight drafts, and there was no evidence of an agreement that the whole price of all the cars was to be paid after final delivery, held, that it was error for the court to charge, that if the defendant's testimony was believed, the contract was entire, and the defendant was bound to deliver all the corn before demanding payment.

The defendant delivered one car-load which was accepted by the plaintiff, and the sight draft therefor paid, but he refused to pay the draft accompanying the second car-load, whereupon the defendant stopped further shipments, and plaintiff claimed damages resulting from such refusal. The court charged the jury that, if they found from the whole evidence that there was a contract made by defendant with plaintiff for the sale to the latter of six cars of corn, to be delivered at different times, and the consideration was to be paid on each item or carload, the contract was severable, and refusal to honor one draft would not rescind it, and plaintiff could recover for the breach in refusing to deliver the rest. Held, that this instruction was also erroneous. The jury should have been told that, if it was the contract of the parties that the corn was to be paid for at each delivery, whether one car or more, and the plaintiff refused to pay for a delivery which had been accepted by him, without some sufficient reason for such refusal, he thereby authorized the defendant to rescind, and, if he did so within a reasonable time, the contract was at an end.

Error to common pleas of Lancaster county.

Case by John H. Moore against A. H. Rugg and George Bryan to recover for an alleged breach of contract in failing to deliver certain car loads of corn.

The plaintiff's testimony was to the effect that on July 21, 1879, he bought six car-loads of corn from Rugg and Bryan, through their agent, Clark, to be delivered to him at Landisville, one or two carloads at a time, one, two or three days apart. Four car-loads of yellow corn, at forty-five and three-fourths cents per bushel, and two of high mixed, at forty-five and one-fourth cents per bushel, each car-load to be paid for by drafts at sight; that in pursuance of this sale two car-loads were delivered, but the defendants refused to deliver the remaining four, which resulted in damage to plaintiff because of the rise in the price of corn.

Clark testified that he was agent for the defendants; that he sold plaintiff six car-loads of corn at so much per bushel, payable by sight drafts; and that his instructions were to sell on sight drafts only. The defendants further offered evidence to the effect that one car-load was. shipped to plaintiff, accompanied by a sight draft and bill of lading, and that plaintiff received the corn and paid the draft; that another car-load was then shipped with a sight draft attached to the bill of lading, but plaintiff did not pay this draft; that he procured the corn without the bill of lading by promising the station-agent that he would pay the draft next day, and bring the bill of lading; that he did not do this however, and when defendants learned these facts they refused to deliver any more corn; that afterward they obtained their money for the second load of corn through the intervention of the railroad company, plaintiff having meantime brought this suit.

At the trial defendants submitted the following point:

"If the jury believe that Rugg & Bryan's agent at Lancaster had no authority to sell corn in any other way than upon sight draft with bill of lading attached,' and John H. Moore, the plaintiff, refused to honor or accept a sight draft of Rugg & Bryan, the defendants, for any of this corn, the verdict must be for the defendants."

Refused.

The court charged the jury, inter alia, as follows: "If the jury from the evidence find the contract to have been as stated in the testimony of the defendant, and made with Moore by defendants, through their agent, it was an entire contract, and defendants were bound to furnish and deliver the corn before demanding pay, and if they failed so to do▾ they would be liable in damages to plaintiff if he suffered loss.

"If the jury find, from the wnole evidence, that there was a contract made by defendants, through their agent, with plaintiff for the sale to him of six car-loads of corn, to be delivered to plaintiff at Landisville, at different times, and the consideration or money for it was apportioned, or to be paid on each item or car-load, and not entire and single, it was a severable contract, and refusal to honor one draft would not rescind it, and plaintiff would be entitled to recover for a breach of it." Verdict for plaintiff and judgment thereon, whereupon the defendants took this writ.

A. J. Steinman & Eugene G. Smith, for plaintiffs in error. H. M. North & E. D. North, for defendant in error.

GREEN, J. This case comes before us in an unsatisfactory manner. The theory of the defense was that the contract was for the sale and delivery of six car-loads of corn to be paid for at a price per bushel on the delivery of each car-load by means of the acceptance and payment of a sight draft for each car-load. There was evidence in support of this theory, the most precise and persuasive of which came from the plaintiff on the witness stand, and from his act of accepting and paying the draft drawn for the first car-load. He also said the price was to be by the bushel and named the amount, forty-five and three-quarter cents for yellow and forty-five and one-quarter cents for mixed, and the defendants' witness concurred that the price was to be by the bushel but did not name the price. The chief complaint of the defendants is, that under the charge of the court they had no hearing before the jury on their theory of defense, and a careful examination of the charge appears to sustain the complaint. This is partly the fault of the defendants, because they might have exhibited their theory in a point expressing it intelligibly, and asked the instruction of the court, but they did not do so. The only point they did present, mingled a question of the authority of the agent with a refusal of the plaintiff to accept any draft, and asked a peremptory instruction for a verdict upon these two matters only when they alone would not necessarily result in a verdict for the defendants, even if found as stated in the point. That would depend upon other facts not expressed or provided for in the point. We cannot say, therefore, that there was error in the mere refusal to affirm the point in the terms in which it was propounded. But in other respects we think the charge tended to mislead the jury, and for that reason the case must be reversed.

Thus the learned judge said in his charge: "If the jury from the evidence find the contract to have been as stated in the testimony of the defendant, and made with Moore by the defendants through their agent, it was an entire contract and defendants were bound to furnish and deliver the corn before demanding pay, and if they failed so to do they would be liable in damages if he suffered ioss. If the jury find from the whole evidence that there was a contract made by defendants, through their agent, with plaintiff, for the sale to him of six car-loads of corn, to be delivered to plaintiff at Landisville at different times, and the consideration of money for it was apportioned or to be paid on each item or car-load and not entire or single, it was a severable contract, and refusal to honor one draft would not rescind it, and plaintiff would be entitled to recover for a breach of it." According to this, the plaintiff was entitled to recover in any event, whether the contract was entire or severable, and the only discretion which the jury had was to assess the damages. Nor did it matter under this language what breaches had been committed by the plaintiff. If he had refused to pay for the corn already delivered, he could, nevertheless, require the defendant to continue delivering, if the contract was entire, and if it was severable the failure of the plaintiff to perform his part of each item of the contract did not authorize the defendants to decline per

Its

forming all the items of the contract on their part, and if they did so decline the plaintiff could mulet them in damages for so acting. We do not think this was a correct view either of the facts of the case or of the rights and duties of the parties. It does not seem to us that the contract between these parties was an entire contract in any view of the testimony. No witness for the defendants or for the plaintiff testified that the corn was all to be delivered before the price was to be paid, or that the sale was a sale in bulk, the whole consideration being an entirety and to be paid at one time. In Lucesco Oil Co. v. Brewer, 66 Penn. St. 351, we held that whether a contract was severable or entire depended upon the character of the consideration, thus: "It is the consideration to be paid and not the subject or thing to be performed that determines the class to which a contract belongs. entirety or separableness depends not upon the singleness of its subject or the multiplicity of the items composing it, but upon the entireness of the consideration, or its express or implied apportionment to the several items constituting its subject. If the consideration is single the is entire whatever the number or variety of the items embraced in its subject; but if the consideration is apportioned expressly or impliedly to each of these items the contract is severable." As the defendants' witness-Clark-testified that he sold six car-loads, deliverable at different times and payable at a price per bushel by drafts at sight, there was an entire absence of an express agreement that the whole price of all the car-loads was to be paid at one time and after the delivery of the entire quantity, and a strong inference that drafts at sight were to be made payable whenever drawn and at each delivery. It was error, therefore, for the learned court below to say absolutely that if the defendants' testimony was believed the contract was entire. The question as to the character of the contract should have been submitted to the jury upon all the evidence and then they would have considered it upon the testimony both of the plaintiff and the defendants, and viewed in this manner they could not, consistently with the evidence, have found an entire contract.

contract

Then they should have been told that if it was the contract of the parties that the corn was to be paid for at each delivery, whether one Car or more, and the plaintiff refused to pay for a delivery which had been accepted by him, without some sufficient reason for such refusal, he thereby authorized the defendants to rescind, and if within a reaSonable time thereafter they exercised their right of rescission, the contract was at an end and the plaintiff could not recover. This view is expressed with reference to the state of the evidence exhibited upon present record.

the

Whether a contract when severable is of such a character that one party may refuse to perform his part as to one of the terms, and nevertheless require the other party to continue full performance of his part of each term upon peril of damages for non-performance is a much vexed question upon which neither the English nor the American courts are agreed, and as to which it is not easy to state a uniform rule. In this State we have held that where a contract consisted of several entirely distinct and independent parts, each of which could be per

formed without reference to the others, a failure of one of the parties to perform one of the terms did not authorize the other to rescind the whole contract and refuse performance of the other terms by the party in default in the first instance, when such further performance was subsequently tendered. Morgan v. McKee, 77 Penn. St. 228. But in this case there were eight separate contracts each for the delivery of five hundred barrels of oil at fixed times and a specified price. The action was on three of them by the seller against the buyer for refusing to accept after default in a delivery, and the question arose on a rejected offer to prove that the contract was entire for four thousand barrels, that the first four deliveries were accepted and paid for, that the fifth delivery was defaulted by the seller, and that when the next delivery was tendered by the seller the buyer gave notice of an election to rescind on account of the previous month's default, and declined acceptance of either that or the subsequent deliveries. We held that the offer could not be received because it contradicted the written contracts by parol testimony, because each delivery was the subject of an independent agreement, the breach of which would authorize a recoupment in damages but not a rescission of the other contracts, and because the right of rescission was not exercised within a reasonable time. The case is not parallel with the present and contains no element which determines it. Nor is the case of Scott v. Kittanning Coal Co., 89 Penn, St. 231; S. C., 33 Am. Rep. 753, any more in point. There the action was by the seller against the buyer for not taking, or not calling for, a large part of an entire lot of fifty thousand tons of coal to be delivered on monthly calls by the buyer, of six thousand tons each, after having taken eighteen thousand tons which were called for and delivered but not in exact accordance with the contract. The defendants contended that inferior coal was delivered among the eighteen thousand tons, and that they were thereby defrauded and authorized to rescind the contract as to the remainder on that account. But we held that while they might have refused to accept the inferior coal they had in fact accepted it and sold it, and therefore could not rescind the contract because they could not restore the inferior coal, and had never notified plaintiffs of their intent to rescind. The case does not raise the question which is presented in this. The case of Reybold and Voorhees, 30 Penn. St. 116, is more closely analogous both in its facts and in the character of the question determined. The action was brought by the buyer against the seller for damages for not delivering peaches under a contract to deliver the seller's entire crop and receive weekly payments for all peaches delivered during each year. The buyer defaulted in his payment for the first week. The seller continued to deliver on the Monday following, but receiving no payment he on Tuesday stopped his deliveries. The buyer on the next day offered to pay and asked to have the deliveries continued, which the seller refused, and thereupon the action was brought. LOWRIE, Ch. J., in speaking of the rights and duties of the parties in these circumstances, said: "The plaintiffs broke their contract by not paying up on Saturday, and the defendant had a right then to rescind it and seek another market. He continued another day to execute it on his side again the plaintiffs failed. Then he rescinded and a