Page:Federal Reporter, 1st Series, Volume 5.djvu/786

 tji „. irEIiERA]>,,BEPPETEJ. �Defendants filed an afSdavit of defence setting forth intei alla — �"Before the ten&er 'ûif the aelitefy oi' the goods for which tliis action js brought the defendants had.ascertj^ined that the plaintiffs dia not intend to comply with their contraet, a copyof whichia filedintheicause, iu this:th'at the residue^ of the 700 tons old T rails merliibfae'd in the-'euntracthadnever ' been ship;^ed by piaintiffg,'.ç|pi', were ever intended Iby. them to be shipped or .deiivered to defendants; and they knew this when they sDught'toiriake defendants ac(6'eptaûd pay for a part of the gôods àgreed to bebought'and spld for this rea- son. Wheii ihe delivery was, tendeied of the goods for the priee of which this action was brought, the same were rejected and refased by thë defendants»" :; �Samuel G. Perkuts, for the rule. �The eontract is severable, and plaintiffs- ftre entitled to recover the price col the cargo for which suit' is brought. Scott V. Kittanninrj Coal Go. 89 Pa. St. 231; Morgan r. McKee, 77 Pa. St. 228; lucesco Qil .Go. v. Brewer, 66 Pa. St. 351; note to Cutter v, Powell, 2 Smith's Lead Cas. (5th Am. Ed.) 45; P., W. e B. R. Co.m. Howard, 13 H'ow. 301 ;Perkins v. Hart, 11 Wheat. 237; "Sickels v. Pattison, le Wend. 257. �R. G. McMurtrie, contra, was not called upon. �McKen'nan, C. J. Beyond ail question this is an entire contraet, and to hold thàttender of a part takes away the right of rescission, when the affidavit says that there was not only an impossibility of delivôry^ as respects the balance but an intention not to deliter, would be to go beyond anything that the English courts have held. �Eule discharged. ����