Page:Harvard Law Review Volume 10.djvu/80

54 54 HARVARD LAW REVIEW, act be to limit the minimum membership of companies to seven persons substantially interested, it is as difficult to support a company of two or five or six as of one. Yet courts have distinguished cases whose logical results were disagreeable on less grounds than this. Broderip v. Salomon was, to be sure, a hard case, but after all did it justify such radical statements about one-man companies in general? Suppose A wishes to engage in trade with a limited liability. He takes his trade assets, sells them to the company he has formed, registers the stock he receives as paid in property under the English act for that pur- pose, and starts in trade. What difference is it to the company's creditors that the stock is owned by one man? They have the assets, the stock is paid in full, as the act requires, as well as if twenty had contributed. How does it differ from a company launched with many shareholders, all of whose stock is bought up subsequently by one man ? That must be bad too, but it cannot defraud creditors, and would seem to be within a rea- sonable construction of the act. Or if not, the company may be dissolved, but why create a new liability? The final outcome of Nunkittrick v. Ferryman will be interesting. Contracts — Acceptance of Part Performance. — The recent case of Silberma7i v. Fretz, reported in 14 New York Law Journal, 1697, though in reality decided upon simple and undisputed grounds, is interesting in its relation to the vexed subject of "divisible" contracts. Under a contract to deliver several parcels of cloth, at different times, the seller delivered only the first parcel, which the buyer accepted. Prior to the delivery of this parcel the seller informed the buyer that he would not be able to deliver the remaining lots at the agreed times ; and the buyer therefore knew that this deliv^ery was complete in itself, and accepted it as such. The court rightly held that under these circumstances the buyer became immediately liable for the agreed price of this parcel, no time of payment having been fixed. There was such a distinct waiver of full per- formance as a condition precedent to payment for this lot as to make it fairly evident, without any necessity of plunging into the obscure question about the "severability," "divisibility," or "apportionment" of con- tracts, that the defendant has in effect consented to pay at the agreed price for this parcel, whether he gets the rest or not. The case does not, however, help towards the decision of the vexed question as to whether the defendant would have been liable if he had accepted the goods, but not under such circumstances as to show a waiver of further performance. If he had accepted the first lot of cloth, and immediately worked it up, so that returning the goods was out of the question, but expected at the time of acceptance to receive the remainder in due time, it would not seem right that he should have to pay for it at the contract price. He would have to do so in England {Oxendale v. Wetherill, 9 B. & C. 441) ; in Massachusetts {Bowker v. Hoyf, 18 Pick. 555), and in some other States ; but the New York courts long ago decided to the contrary in Champlain v. Rowley ^ 18 Wend. 632 ; and the question is still in dis- pute. The contract in such cases is evidendy intended to be entire, and the courts all recognize it as being originally such ; but after an acceptance of part performance the question arises whether that part of the contract should not be regarded as completed in itself, and as divided off from the rest of the contract by the acts of the parties. This view, which ex-