768
FEDERAL REPORTER.
place, beoause of the failure of business projects. There was a continued 'residence in the alleged new domicile, and the testimony is that the return to the former domicile was for temporary purposes only. The plaae of business of the plaintiff's husband, according to the present showing, is in the state to which the parties have gone. And although the court might wish that the proof was more adequate and the circumstances more conclusive, I think upon the evidence, as it stands, it must be held that such a change of domioile was made and such a new residence was acquired as established citizenship in another state. I do not see how the alleged alienage of the husband can affect the question. It is the citizenship of the plaintiff that is involved. She had been a citizen of Wisconsin. Berdomicile and residence would follow that of her husband. With his ehange of residence her residence and citizenship, especially if she personally accompanied him, would change, and his legal status as to residence would be hers. His national citizenship would not, I think, affect her citizenship when her actual residence followed his. On the whole, my opinion is that the plaintiff should have judgment in her favor on the issue raised by the plea.
NORRINGTON
v.
WRIGHT.'"
((JirlJ'lkit (Jourt, E. D. PennsyZvania. PORTION.
January 24,1881.)
A contract for the sale of a specific quantity of merchandise to be delivered in successive shipments of stipulated amounts, each shipment to be paid for on delivery, may be rescinded by the vendee upon failure of the vendor to deliver anyone of the shipments. 2. SAllE-PARTIAL PERFORMANCE-AcCEPTANCE OJ' IN IGNORANCE OF DEFAULT.
In such case the acceptance by the vendee of one cargo, in ignorance of a default of the vendor as to subsequent shipments, will no1i prevent the vendee from rescinding the contract. ' "Reported by Frank P. Prichard, of the Philadelphia bar.
v. WnfGHT.
8.S..lidJi:. SIX
':;.
,;A.JcPI/.U'\¥lted tq sell
:,;: ' " ','- I r: I lJ. s,opowps,of.
,',
,m0,wh" ,be : months, eacn cargo to be palll for' oh 'd'eliV'el'y;" shipped 350 tons the first month, and 897 the second month, but shippedttiet whole '1ijtbi. ,1j!:u;>p.ths.',B, 8I\dp.l\i,d1or ""I\stp thQ Hel<!" he cO,ulci resc,ind thll contract, /IntI refuse accept theotherSHlpinents:;,r;" :," "'I ",,' 7 1 . : 'Jdfff ' f ')' . C\
_f'
I
1'1'.,'
L'I
';!i (i',
r"
, ' " .: ( / /
.
, A8Bump8lt,l>y A.. Sllnj;luppn the foll1>wing:
;'"
i , , ) ,I Lr
'.' il', January 19, 18S0. i "Sold to: Messrs; Petel1 Wiight r& S<msjforaec!lolint;9£,MesSf8.; A.,N 0l'l'ington1 &,00.; Lonldon, 5,000 tons :old T 'iron,ra.ils,for shipment from Europeari pprt Ol'1>orts,'at',tbe ,rateof,about 1,00'0 tons' pel" motiltlf,; be'gitiningFebrual'Yl ,1880/ bUt .W'hol$ c'onrractto 'lie shipped before AugUst' ],'1880,;:st f$45"p'er tOD: of 2,240 olistom.house weight, exshil) Philadelp.!J.ia. Settlementoash; on presentation of:])ilfs aooompaniellby,cus· tom.house certificate of ,weight. Sellers 00, rof. shipmerits; with vessels named, as soon as;known' by them, not to' becom'PJeHedto· replaoe anyparoel lcis,t after. shipment." ,Sellers, 'poslIible, to secure ,to btilyer.srighttoihll,me dis(}harging berth of 'at Philadelphia/1, :, The declaration)averred perfQl;inanceby::plaintiffs, afid' ai}cepu bi/defendants;"" ,i , '" : ' ; ., ,i A't'theirial, (before McKbnna'n:'anifButle1',j'j.,) plaintiffs proved' shipments' tinder thiS cdntHtot foliows:; 'Februatj!; 895 tons ; March;' 891 tons;' April,1,3'49t6ns;Ma:y; ton's; Jrlne, 991' tons:; july; 3<1tftoD.s. : The firsti'cargo, ci)n! sistln{of the 39-5 tons shipped inFebruarYi wits' received and pafd for by' d'eieridants.' tirJon'tM a'rrival 'of' the 6thercargoes, defendants declined to receive them, and right to rescind the contract, because of the'fnilureofplainth'e stirulate'd February aridlMarch. FIaihtiffs faildCl to! d'efendants, at" the 'tithe .of receh,iili'the firsii'catgo,knew of phtintiffs f making the"shipmetits," , ' ,':' , ' , " ,', , ' v.5,no.9-49
a
At the close of plaintiffs' evidence, the court being of opin-: to 'rescind the contract, move to take it·off. ." ' l"8cimti£lDicksot'/, and·John O. Bullitt,forthe motion. '. ':(sthe ".1.l.1).I"""I",,,,.:, ',':,; tl.llowed. si1.1honths fdT'theship..... mimt of the whole 5,000 tons, the faIlure to ship 1,000 tons in anyone month was immaterial. The facts that each shipment was to be paid for separate'lY;t!jfha.t' the time: of atrival ;tMt .!.OBt"· shipments: were. be replaced, all show that the con'1lt'wat w&s·sev6MbMJ The rule is tIra.f' if ,tliepant tG be performed 'by one party consists of 'Snd the/priM' toba"paid by the other :isapportiohad, to' each .item;' the jcontract is .severable. on ')C<nitracts;29-31;: Lucesco' 'Oil On. v. Brewer, 66 Pa. SfJ.\ 35:1;' &ott, BOP-a! St; Scott v. Kittan89 ·Pa.St. 2.3'1.'; noteto"salme case, 19 Am. La.w Beg. (Ndk) Morganv.McKee, ,77 Pa. St. ,299 ; Pe.rk'in& v, Ha1;b, :11 Wheat. 23'T. If the contract-is severable under tule·oflNrdage,v.,Oole, 1 Wms. Saund. 320, the covenanHs snbstituMd fonxa.et perfonnarice, and the failure.of the seHer to· 'supply the'. first.: monthly> instalmel!Vt· does not entitle the purchaser to resoind'unless such failure is aocompanied. by other circumstances: showing,'an intention toabandon:the Bl'lnjaD:\in on, :Sll-les,.. §1)426.;, .Stoddart v. Sm'ith, 5 Burn. 355; v. Fcitner l .20 N. v. ]j'r:ie:s. 1il Bal·h.:nS ;.,Lee' . 13 89; Johna88okn v. young;, 4 oR & .S..29.6; (116 E. O.L.;},$impson v. Ctjippen, Rep; B,. 1.4,; f{oper v·.,J()hnson, L. .E.8 O. P. Diy. 1p,7; Freethv. Burr; L.. R.9 C. P. 208:; .Bloomer v. Berntine. Chalmers,L. R. 9 O. P.289; .0.1'.15; Houck v. Muller, Times;. 18,1880. ; . R. 0, McMur,tr,ie,: clJntra., .adopted tb:e. English eases cited. by plaintiffs i£! a departm;efr9mthe decision!;lof the English courts, and iljl.; with En,glish decisions, Johnson v. Johnson, 3 B. & 'Pull. 162'-70; v.
ioIl lthat
uff,},' ..., , , I ' J
1,0,
. ·
7fl 387; Hoare 'v. &INotfu. 19; iJJ'adJ v. Williams,'L.R.7 Exch; 201; OodtIingto'n hipaleslbgti; L; R. 2 Exch. 193:· It has hot 'beenLaid.opted 1h 'tiMe Smith v. Lewis, '98;' :McMillan :v.VaiIJdeflllipi 12 ;John} 165; Oailinv. Tobias; 26N. Y. 217; BJflitte; 60 Pat St.' 182; Raybold'v. Williams, '30 Pa.St:268 ; BrCtxlley t: Kinfj,f 44111. 339. When a,time is fixed. ifor"d.eli-very,'ll,c,resclss{on is always allowed upon deliVer, and'hoiIitelltidit'fd va.'i·y this can" be 'drawn from ' agreement fot slripments of:the one subject df sale: contiact remains one, though divisibl'e·inp'el.'formatice; -therais nd reason why this right of rescissidt1/shouldnot bieiercisea;t", Partial performance by the does' 'uotllrevent· tlia' vendee from rescinding if the contract furnishes 'an exact· measure of compensation for' theb'ehMit teceived. Chitty'6ti Cont.1094; Hill V. Oreu1,'1' Metc. 26S:""72;Hdilies v. Tucker,1 50 N. H; 309; Dwinel v. SOMe. 258; Miner' # Bradley, 22 Pick. 459; Bradley v. King, 44- Ill. 839; v. Tobias, 26 N. Y;;217; Sharpv. 'The Turnpike, 3'Pa. St: ; BUTLER, D. J., (orally.) T.o justify ail allowance of th'.' motion, we must be convinced that our l"ulingat the wrong. We are not so convinced.; . The motion: must there: fore, be dismissed. For myself, ;however, I may saythat;T regard the point as involved 'inserions' douht,-'not somuch when considered on general prhiciples, as when viewed in the light of modern decisions. The right to rescind' a contrs.'Ct for noil-performance, is a ·remedy as old as the law of con:; tract itself. Where t,he' bontract is right is unquestioned: The undertakings on the one side, arid on the other, are dependent, and perform.ance by one party cannot be enforced by the other, without performance, or a tender of performance, on his own part. In the case before us the contract is "severable." But to say it is "severable," does not advance the phtil1tiffs' argument.' A:< "severable" oontract, as the language imports, is a contract liable simply to be severed. In its origin, and till severed, 'it is eritii'e"':'-a, single bargain, or transaction. Thedoctriile' of severable. ness, (if I may he allowed to coin a word,)' iri contracts, is an invention of the courts, in the interest of Justice,designed Jto
Mill: 9' B
l
772
enable one who has· partia.lly performed, a.nd is entitled on such partial performance" to something from the other side, to sU!3tainl;lin action, in a,dvance of complete performance,as where goods are sold to ,be delivered and paid for in parcels, to enable the seller to recover for the parcels delivered, in. advance of completing his undertaking. Bllt this doctrine should n()t be invoked by one who has failed to perform., for the purpOl'!e of defeating the other's right to rescind, and thus to protect himself against the consequences of his own wrong. As such a party the contract should be treated, and enforced, as entire. To say therefore that the contract is "severable," does not, I repeat, advance the argument. To render. the plaintiff's position logical, it is necessary to a step forward, and hold that such a transaction, (it would not be accurate in this view to call it a contract,) constitutes several distinct, independent contracts. Then of course it follows that a failure as respects one of several successive deliveries, affords no right to rescind in regard to those yet to be And this step, after much apparent doubt and hesitation, the English courts have taken. It was then.ecessary outgrowth of the decision in Simpson v.Crippen, which overruled lI(Jare v. Rennie. In our own cQ,untry; the oases are. inharmonious, the q;uestion unsettled. Aft(?r a cardul examination of ",hat has been said on the suhject, I sball not be surprised if the courts here finally adopt present English :rule, and thus compensation in dam· ages far the remedj{ l?y rescission, to the extent ,say this, notbecausEl I tqiuk; it wise to adopt this r1;11e, but because of apparent leaning in that direction. l'hlil,.question, however, as here presented, is properly for the supreme cpurt, to which I hope it may be carried, and the rule thus be. settled. . C. J., (orally.) I concur in the f0regoing delam not satisfied that. the weight ,of authority, in this country is preponderating, in favor of following t4e English rule. I have very great doubt as; to the justice of this rule and am not disposed to follow it. I am not willing to ta.ke this advanced step. McKENNAN>
, JU.VEMEYER V. WRIGHT.
'l7lJ
HAVEME¥ER
WRIGHT.-
Oourt, E. D. "
'
24, 1881.)
L
SEVERABLE CoNTRACT-T&NDlllR' Oil' PART PER1l'OlUlANCFJ-Rl!lFUSAL
TO ACCEPT-A1rJl'WAVIT Oil' DEnNOE. "
,
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.