to make payments due, will not entitle the latter to treat the contract as rescinded and recover payments already made. 283 So the fact that the buyer under a contract for the manufacture and sale of certain commodities requests the seller to furnish more than the contract calls for will not constitute a repudiation of the contract nor release the seller from his obligations thereunder.284 And where the parties differ in their interpretation of the contract, a demand for performance on the one side, which is in excess of the requirements of the contract according to the understanding of the other, does not rescind the contract if acquiesced in by a tender of performance according to such demand.28

283 Foxley v. Rich, 35 Utah, 162, 99 Pac. 666.

284 Henry Paper Co. v. Columbia Paper Bag Co., 185 Fed. 464, 107 C. C. A. 534.

285 Wheeler v. New Brunswick & C. R. Co., 115 U. S. 29, 5 Sup. Ct. 1061, 1160, 29 L. Ed. 341.

CHAPTER XXXII

ENTIRE OR PARTIAL RESCISSION

§ 583. General Rule.

584.

Separation of Beneficial and Onerous Portions of Contract.

585. Separable or Divisible Contracts.

586.

Delivery or Performance in Installments.

587. Part of Property Sold by Purchaser.

588. Option for, or Acceptance of, Partial Rescission. 589. Power to Decree Partial Rescission.

§ 583. General Rule.-Unless a contract is clearly divisible or separable, there can be no such thing as a partial rescission of it. If one of the parties has a legally sufficient ground to cancel the contract, he will have an option either to rescind it or to affirm it, but his election of either course must go to the whole contract and not to part of it only. In other words, he must rescind in toto or not at all. Thus, for example, if the contract is for the sale

1 Foreman v. Bigelow, 4 Cliff. 508, Fed. Cas. No. 4,934; Borum v. Garland, 9 Ala. 452; J. M. Ackley & Co. v. Hunter, Benn & Co.'s Co., 166 Ala. 295, 51 South. 964; Bellows v. Cheek, 20 Ark. 424; Purdy v. Bullard, 41 Cal. 444; California Steam Nav. Co. v. Wright, 8 Cal. 585; Gordon-Tiger Mining & Reduction Co. v. Brown, 56 Colo. 301, 138 Pac. 51; J. H. Carter & Co. v. Swift Fertilizer Works, 9 Ga. App. 323, 71 S. E. 494; Jennings v. Gage, 13 Ill. 610, 56 Am. Dec. 476; Bowen v. Schuler, 41 Ill. 192; Barhydt v. Clark, 12 Ill. App. 646; Babcock v. Farwell, 146 Ill. App. 307; White Brass Castings Co. v. Union Metal Mfg. Co., 135 Ill. App. 32; Kimball v. Lincoln, 7 Ill. App. 470; Leake v. Ball, 116 Ind. 214, 17 N. E. 918; Wiley v. Howard, 15 Ind. 169; Johnson v. Cookerly, 33 Ind. 151; Worley v. Moore, 97 Ind. 15; Burgett v. Teal, 91 Ind. 260; Stringer v. Keokuk, Mt. P. & N. R. Co., 59 Iowa, 277, 13 N. W. 308; Edwards v. Hanna, 5 J. J. Marsh. (Ky.) 18; Getchell v. Kirkby, 113 Me. 91, 92 Atl. 1007; Hubbardston Lumber Co. v. Bates, 31 Mich. 158; Hunter v. Holmes, 60 Minn. 496, 62 N. W. 1131; Pierce v. Jarnagin, 57 Miss. 107; Wood v. Gibbs, 35 Miss. 559; Commercial Bank of Manchester v. Lewis, 13 Smedes & M. (Miss.) 226; Lapp v. Ryan, 23 Mo. App. 436; Baum Iron Co. v. Burg, 47 Neb. 21, 66 N. W. 8; Bishop v. Stewart, 13 Nev. 25; Roth v. Palmer, 27 Barb. (N. Y.) 652; Raymond v. Bearnard, 12 Johns. (N. Y.) 274, 7 Am. Dec. 317; Matteawan Co. v. Bentley, 13 Barb. (N. Y.) 641; Gale v. Nixon, 6 Cow. (N. Y.) 446; J. I. Case Threshing Machine Co. v. Feezer, 152 N. C. 516, 67 S. E. 1004; Nass v. Chadwick, 70 Tex. 157, 7 S. W. 828;

and purchase of land for a specified sum, and there has been either fraud or a mutual mistake as to the title to a part of it, the title to that portion proving defective, this will be a sufficient ground for rescinding the whole contract, but the vendee cannot insist that it shall be rescinded as to that part of the land only, and if he elects not to rescind, he must pay the whole price. So, a vendor cannot maintain a suit for the cancellation of his deed against one of the two vendees, without returning, or offering to return, the purchase money received by him from the other vendee, as a contract cannot be repudiated in part and affirmed in part. On the same principle, where a contract for the purchase and sale of goods is entire, the purchaser cannot retain a portion of the goods and reject the rest, on the ground of fraud, breach of warranty, or defective quality, or keep what has been delivered under the contract, and rescind it as to the remainder. So, one cannot revoke an authority conferred by one part of an instrument which he is not entitled to rescind as a whole, nor rescind a contract as to some of its provisions and rely on it as to others, nor consider the contract void in order to recover his property and at the same time treat it as in force in order to recover damages. And again, if a party elects to affirm the contract, having the right to rescind it, he must

6

7

Osburn-Dalchau Lumber Co. v. Taylor, 59 Tex. Civ. App. 442, 126 S. W. 48; Fay v. Oliver, 20 Vt. 118, 49 Am. Dec. 764; Glassell v. Thomas, 3 Leigh (Va.) 113; Hendricks v. Goodrich, 15 Wis. 679; Grant v. Law, 29 Wis. 99; Weed v. Page, 7 Wis. 503; Guild v. More (N. D.) 155 N. W. 44.

2 Bailey v. James, 11 Grat. (Va.) 468, 62 Am. Dec. 659; Rinker v. Sharp, 5 Blackf. (Ind.) 185.

3 Merrill v. Wilson, 66 Mich, 232, 33 N. W. 716.

4 Crane Co. v. Columbus Const. Co., 73 Fed. 984, 20 C. C. A. 233; Boyd v. Second Hand Supply Co., 14 Ariz. 36, 123 Pac. 619; ArnallCouch-Powers Co. v. National Discount Co., 11 Ga. App. 487, 75 S. E. 816; Harzfeld v. Converse, 105 Ill. 534; Quwack v. Cruse, Wils. (Ind.) 320; Miner v. Bradley, 22 Pick. (Mass.) 457; Morse v. Brackett, 98 Mass. 205; Shields v. Pettee, 4 N. Y. Super. Ct. 262; Dubois v. Hermance, 1 Thomp. & C. (N. Y.) 293; Levy v. John C. Dettra & Co., 91 Misc. Rep. 41, 154 N. Y. Supp. 176.

5 Norcross v. Wyman, 187 Mass. 25, 72 N. E. 347.

• Girouard v. Jasper, 219 Mass. 318, 106 N. E. 849. Junkins v. Simpson, 14 Me. 364.

8

affirm it as a whole and in all its terms. Where land was transferred in consideration of part cash, the assumption of a mortgage on the land, and the transfer of certain stock. which proved to be worthless, it was held that the vendor could not obtain a rescission as to the stock, on the ground of fraud, while retaining the cash paid and relying on the purchaser's assumption of the mortgage. And it follows further from the rule that a contract must be rescinded as a whole that, where this is done, the terms of the abrogated contract have no influence whatever upon the subsequent determination of the rights of the parties or the adjustment of matters growing out of it, but these must be settled in accordance with the principles of equity.10

§ 584. Separation of Beneficial and Onerous Portions of Contract. In pursuance of the rule above stated, it is well established that a party cannot affirm a contract in so far as it is beneficial or advantageous to him and at the same time disaffirm it in so far as it is prejudicial or unprofitable. He cannot retain the benefits of the contract, and yet refuse performance of what is burdensome to him.11 Thus, a vendor cannot affirm a sale in so far as payment was made in cash, and rescind it in so far as payment was made in worthless notes fraudulently represented to be good.12 So, a person who has taken out a policy of life insurance cannot repudiate a provision in it that it shall not apply to

11

8 Hayward v. Wemple, 152 App. Div. 195, 136 N. Y. Supp. 625; Cole v. Smith, 26 Colo. 506, 58 Pac. 1086.

Stuart v. Hayden, 72 Fed. 402, 18 C. C. A. 618.

10 Lytle v. Scottish American Mortg. Co., 122 Ga. 458, 50 S. E. 402; Gatling v. Newell, 9 Ind. 572; Olson v. Lamb, 56 Neb. 104, 76 N. W. 433, 71 Am. St. Rep. 670.

11 Lovingston v. Short, 77 Ill. 587; Higham v. Harris, 108 Ind. 246, 8 N. E. 255; Krag-Reynolds Co. v. Oder, 21 Ind. App. 333, 52 N. E. 458; American Car & Foundry Co. v. Smock, 48 Ind. App. 359, 91 N. E. 749, 93 N. E. 78; Morrow v. Moore, 98 Me. 373, 57 Atl. 81, 99 Am. St. Rep. 410; Expansion Realty Co. v. Geren, 185 Mo. App. 440, 170 S. W. 928; Collison v. Ream, 95 Neb. 29, 144 N. W. 1050; Clarkson v. Mitchell, 3 E. D. Smith (N. Y.) 269; J. L. Owens Co. v. Doughty, 16 N. D. 10, 110 N. W. 78; Menard v. Sydnor, 29 Tex. 257; Nalle v. Virginia M. R. Co., 88 Va. 948, 14 S. E. 759; Manss-Bruning Shoe Co. v. Prince, 51 W. Va. 510, 41 S. E. 907. 12 Stevens v. Hyde, 32 Barb. (N. Y.) 171.

death from injuries received while traveling by rail, alleging that fraud was practised on him to induce him to take the policy, and enforce it as to the rest of its provisions, but, if entitled to rescind, he must rescind it as a whole.13 So, where a party applied to purchase one of two tracts of land, which the owner refused to sell unless he would take both, and the purchaser, knowing that the title to the other tract had been questioned, bought both, taking a warranty deed as to the estate sold, and afterwards, without having been disturbed in his possession, filed his bill to rescind the sale as to the latter and less valuable tract, it was held that the bill should be dismissed, there being no claim that the warranty was not good.11

§ 585. Separable or Divisible Contracts.-When a contract is separable or divisible into a number of elements or transactions, each of which is so far independent of the others that it might stand or fall by itself, and good cause for rescission exists as to one of such portions, it may be rescinded and the remainder of the contract affirmed.15 And it has been held that where a contract consists of parts so distinct and independent that each could be performed without reference to the others, a failure of one of the parties to perform one of the parts or terms of the contract does not authorize the other to rescind the whole contract, and refuse to accept a tender of performance of the remainder of the contract by the party in default.16 The usual test of the severability of a contract is the entirety or divisibility of the consideration. Thus, a party who has been fraudulently induced to make a contract cannot, as a general rule, affirm it in part and avoid it in part, but where the contract is divisible into several independent parts rest

18 Preston v. Travelers' Ins. Co., 58 N. H. 76.

14 Lovingston v. Short, 77 Ill. 587.

15 Bamberger Bros. v. Burrows, 145 Iowa, 441, 124 N. W. 333; Caddo Oil & Mining Co. v. Producers' Oil Co., 134 La. 701, 64 South. 684; Hochberger v. Baum (Sup.) 85 N. Y. Supp. 385; Peters Grocery Co. v. Collins Bag Co., 142 N. C. 174, 55 S. E. 90; Loomis v. Wainwright, 21 Vt. 520.

16 Rugg v. Moore, 110 Pa. 236, 1 Atl. 320. But see National Bank & Loan Co. v. Dunn, 106 Ind. 110, 6 N. E. 131.