Where a part of the goods have been delivered and paid for on delivery, or have been consumed and cannot be returned and the balance is then destroyed, courts will endeavor, if possible, to construe the contract as a divisible one and apportion the liabilities of the parties accordingly.12 DIVISIBLE CONTRACTS.-In the case of divisible contracts each instalment is regarded as a separate contract and the foregoing rules as to the total destruction have been applied to each.13 Moore, 3 Mich. 55; Flanders v. Putney, 58 N. H. 358; Shaw v. Badger, 12 Serg. & R. (Pa.) 275; Oxendale v. Wetherell, 9 B. & C. 386; Shipton v. Casson, 5 B. & C. 376; Bragg v. Cole, 6 J. B. Moore, 114. "The rule is that Though a contract of sale be entire, and the seller deliver only a part of the goods bargained for, yet if the vendee retain such part, the vendor may recover the value of the goods retained in an action for goods sold and delivered.' Clark v. Moore, 3 Mich. 55. The acceptance and retention of a part of the goods is treated as a waiver of the condition precedent as to the delivery of the rest of the goods, and where the sale is of specific goods, and the goods perish before delivery without fault of the vendor, the vendee has no right of action for failure to deliver on part of the vendor. This rule applies also where it becomes impossible to deliver a part of property sold, as illustrated in the English case of Howell v. Coupland, L. R. 9 Q. B. 462." Ontario, etc., Association v. Packing Co., 134 Cal. 21, 53 L. R. A. 681, 683. "A vendee may accept the delivery of a part of the property and waive the delivery of another, and this may be shown by circumstances." Kein v. Tupper, 52 N. Y. 550, 555. See Angus v. Scully, 176 Mass. 357; Butterfield V. Byron, 153 Mass. 517, 12 L. R. A. 571. Both of these contracts were for the furnishing of labor and material upon a permanent building which was destroyed by fire without the contrac tor's fault. 2 Mechem on Sales, § 1102. "The decisions in England differ from those in Massachusetts and of most of the other States of this country. There the general rule, stated broadly, seems to be that the loss must remain where it first falls, and that neither of the parties can recover of the other for anything done under the contract. In England, on authority and upon original grounds, not very satisfactory to the judges of recent times, it is held that freight advanced for the transportation of the goods, subsequently lost by the perils of the sea, cannot be recovered back. Allison v. Bristol Ins. Co., 1 App. Cas. 209, 226; Byrne v. Schiller, L. R. 6 Ex. 319. In United States and in Continental Europe the rule is different. Griggs v. Austin, 20 Mass. (3 Pick.) 20, 22; Brown v. Harris, 68 Mass. (2 Gray) 359." Butterfield v. Byron, 153 Mass. 517, 522. 12. Lorillard v. Clyde, 142 N. Y. 456; Dexter v. Norton, 47 N. Y. 62. (An entire sale of six hundred and twenty-one specific bales of cotton at forty-nine cents a pound, to be paid for on delivery. Four hundred and sixty bales were delivered and paid for and the balance destroyed by fire. An action for damages for delivery was dismissed on the ground that the impossibility to perform excused the performance of the balance, and that the contract was ap portionable.) non 13. Herzog v. Purdy, 119 Cal. 99; Gomer v. McPhee, 2 Col. App. 287; Whether or not a contract to sell is divisible depends upon the intention of the parties." Contracts in which the delivery or payment or both is made in instalments have in some instances been held to be entire contracts,15 and in others to be entire on one side and apportionable on the other;16 but there must be evidence from which an intention of the party in default to abandon his contract may be inferred." 17 See further notes under sections 7 and 44. Weeks v. Crie, 94 Me. 458; Barrie v. Earle, 143 Mass. 1; Lucesco Oil Co. v. Brewer, 66 Pa. St. 351; Morgan v. McKee, 77 Pa. St. 228; Rugg v. Moore, 110 Pa. St. 236; Gill v. Lumber Co., 151 Pa. St. 534; Easton v. Jones, 193 Pa. St. 147 (entire); Ritchie v. Atkinson, 10 East, 295; 2 Mechem on Sales, § 1163; 3 Page on Contracts, §§ 483 et seq. A contract to sell a number of separate chattels for a fixed price for each is usually regarded as a divisible contract. Young, etc., Co. v. Wakefield, 121 Mass. 91; Flather v. Machine Co., 71 N. H. 398; Pierson v. Crooks, 115 N. Y. 539. A contract to sell a number of separate chattels at a gross price for all is usually considered an entire contract. Miner V. Bradley, 39 Mass. (22 Pick.) 457; Providence Coal Co. v. Coxe, 19 R. I. 380. Apportioning the consideration is evidence of an intention that the contract is severable. Aultman, etc., Co. v. Lawson, 100 Iowa, 569. 14. Pollak v. Electric Ass., 128 U. S. 446; Loud v. Water Co., 153 U. S. 564 (land). Lambie v. Steel Co., 118 Ala. 427; Huyett, etc., Co. v. Edison Co., 167 Ill. 233; Barnes v. Coal Co., 101 Tenn. 354. "The question whether a contract is entire, or divisible, in respect to the question of payment of the consideration, cannot be solved by the application of any fixed legal standard. It depends upon the intention of the parties to be gathered from all the circumstances surrounding the agreement and from the face of the contract, if in writing. It is quite as much, as a rule, a question of fact as of law, particularly where the terms of the agreement rest in parol." State v. Davis, 53 N. J. L. 144, 147. "The entirety of a contract depends on the intention of the parties, and not on the divisibility of the subject. The severable nature of the latter may often assist in determining the intention, but will not overcome the intent to make an entire contract when that is shown." Shinn v. Bodine, 60 Pa. St. 182, 185; approved in Easton v. Jones, 193 Pa. St. 147. 15. Norrington v. Wright, 115 U. S. 188, 203; Cleveland Rolling Mill Co. v. Rhodes, 121 U. S. 255, 261. Herzog v. Purdy, 119 Cal. 99; Morris v. Wibaux, 159 Ill. 627; Bollman v. Burt, 61 Md. 415; Lehigh Zinc Co. v. Trotter, 42 N. J. Eq. 661; Catlin v. Tobias, 26 N. Y. 217; Welsh v. Gossler, 89 N. Y. 540; Hill v. Blake, 97 N. Y. 216; Morgan v. MeKee, 77 Pa. St. 228; King Phillip Mills, v. Slater, 12 R. I. 82. 16. "The contract in this case is clearly an illustration of a sale which is entire on one side, and apportionable on the other." Johnson Forge Co. v. Leonard, 3 Pen. (Del.) 342, 347, 57 L. R. A. 225; see Vallens v. Tillmann, 103 Cal. 187; Miller V. Moore, 83 Ga. 685. 17. Trotter v. Hecksher, 40 N. J. Eq. 612; Blackburn v. Reilly, 47 N. J. L. 290; Otis v. Adams, 56 N. J. L. 38; Gerli v. Poidebard Silk Manufac THE PRICE. Section 9. Definition and Ascertainment of Price.-(1.) The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the course of dealing between the parties. (2.) The price may be made payable in any personal property. (3.) Where transferring or promising to transfer any interest in real estate constitutes the whole or part of the consideration for transferring or for promising to transfer the property in goods, this Act shall not apply. (4.) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. EXECUTORY CONTRACTS.-In order to make a valid contract to sell, for the breach of which damages may be recovered, the parties must agree upon the price, or upon the means for fixing the same.1 The price may be fixed indirectly. The contract is not complete if the parties are not in fact agreed on the price, although apparently so; or if the price is left to be agreed upon afterward, and they fail to agree, especially if there is no delivery. But if the turing Co., 57 N. J. L. 432; Mersey Steel Co. v. Naylor, 9 App. Cas. 434. 1. Williamson v. Berry, 49 U. S. (8 How.) 495, 544; Borland v. Nevada Bank, 99 Cal. 89; Foster v. Mining Co., 68 Mich. 188; DeVane v. Fennell, 24 N. C. (2 Ired.) 36; Bigley v. Risher, 63 Pa. St. 152; 1 Mechem on Sales, § 204; Benjamin on Sales, § 85. The vendor, to undersell trade rivals, may sell goods at a loss. Ajello v. Worsley (1898), 1 Ch. 274, 280. 2. Ames v. Quimby, 96 U. S. 324; Phifer v. Erwin, 100 N. C. 59, 60. "Ten cents a bushel less than the Milwaukee price, on any future day the vendor might name," McConnell v. Hughes, 29 Wis. 537; "for the same as similar articles may bring afterward at auction," Cunningham v. Brown, 44 Wis. 72; "the highest market price whenever the vendor may demand payment," McBride v. Silverthorne, 11 U. C. Q. B. 545; "a reasonable price to be afterward agreed upon." Greene v. Lewis, 85 Ala. 221, 222. 3. 1 Mechem on Sales, § 205. 4. Albemarle Lumber Co. v. Wilcox, 105 N. C. 34. "But there cannot be an executed sale so as to pass the property where the price is to be fixed by agreement between the parties afterwards and the parties do not afterwards agree. One element of a sale is wanting just as a different element would be if the thing were not ascertained." Wittkowsky v. Wasson, 71 N. C. 451. 5. Bigley v. Risher, 63 Pa. St. 152. If upon trial, the agreed price is in dispute, evidence of the real value is admissible as tending to show the agreed price. Johnson v. Harder, 45 agreed price is the reasonable value and the parties fail to agree upon what that is, the law will determine it and the contract is complete. The contract may provide for the determination of the price by reference to the market price; or to the happening of a subsequent event, or by submission to appraisers; and the price 8 Iowa, 677; Bradbury v. Dwight, 44 Mass. (3 Met.) 31; Rennell v. Kimball, 87 Mass. (5 Allen) 356; Parker v. Coburn, 92 Mass. (10 Allen) 82; Saunders v. Clark, 106 Mass. 331; Brewer v. Housatonic R. R. Co.. 104 Mass. 593, 107 Mass. 277; Norris v. Spofford, 127 Mass. 85. 6. Green v. Lewis, 85 Ala. 221; Stewart v. Cook, 118 Ga. 541; Hassard v. Hardison, 117 N. C. 60; 1 Mechem on Sales, § 205. A delivery of goods to one who promises to pay what they are reasonably worth is a sale for their reasonable value. Hill v. Hill, Executor, 1 N. J. L. 261. 7. Ames v. Quimby, 96 U. S. 324 (price dependent on market price of gold); Mason v. Thornton, 74 Ark. 46; Bacon Fruit Co. v. Blessing, 122 Ga. 369; Daniel v. Hannah, 106 Ga. 91; Beardsley v. Smith, 61 Ill. App. 340; Lund v. McCutchen, 83 Iowa, 755; Shaw v. Smith, 45 Kan. 334, 11 L. R. A. 681; Hagins v. Combs, Silver102 Ky. 165; McBride v. thorne, 11 U. C. Q. B. 545; Ashcroft v. Butterworth, 136 Mass. 511; Lilienthal v. Suffolk Brewing Co., 154 Mass. 185; Phifer v. Erwin, 100 N. C. 59; McConnell v. Hughes, 29 Wis. 537; Cunningham v. Brown, 44 Wis. 72; Wing v. Wadhams Oil Co., 99 Wis. 248; 1 Mechem on Sales. § 208. The price may be based upon the cost. Sylvester v. Ammons, 126 Ia. 140. pendent on speed of mare); Buckmaster v. Consumers' Ice Co., 5 Daly (N. Y.), 313 (price which would yield seller a net profit of $1.00 a ton); Wing v. Wadhams Oil Co., 99 Wis. 248; Brogden v. Marriott, 2 Bing. (N. C.) 473; 1 Mechem on Sales, § 211. The agreed price of a cow was $100 if she proved to be with calf at the time of purchase, and, if not, $40. Newell v. Smith, 53 Conn. 72. Goods may be sold to a retailer on condition that they shall not be resold under certain specified prices. Elliman v. Carrington (1901), 2 Ch. 275. Such a condition is not binding on subsequent buyers even with notice. Taddy v. Sterious (1904), 1 Ch. 354; McGruther v. Pitcher (1904), 2 Ch. 306 C. A. 9. Humaston v. Am. Tel. Co., 87 U. S. (20 Wall.) 20; Hutton v. Moore, 26 Ark. 382; Elberton Hardw. Co. v. Howes, 122 Ga. 858; Norton v. Gale, 95 Ill. 533; Stose v. Heissler, 120 Ill. 433; Brown v. Bellows, 21 Mass. (4 Pick.) 179, 189; Fox v. Hazelton, 27 Mass. (10 Pick.) 275; Strong v. Strong, 63 Mass. (9 Cush.) 560, 569; Palmer v. Clark, 106 Mass. 373, 389; Haley v. Bellamy, 137 Mass. 357; N. E. Trust Co. v. Ab bott, 162 Mass. 148; Wilcox V. Young, 66 Mich. 688; Fuller v. Bean, 34 N. H. 290; Thurnell v. Balbirnie, 2 M. & W. 786; Cooper v. Shuttleworth, 25 L. J. Ex. 114; Vickers v. Vickers, L. R. 4 Ex. 529; Milnes v. Gery, 14 Ves. Jr. 400; Wilkes v. Davis, 3 Mer. 507; Clarke v. Westrope. 18 C. B. 765; 1 Mechem on Sales. § 212; Benjamin on Sales. § 87. 10 fixed by them binds both parties, and satisfies the statute of frauds." Such an appraisement is not an arbitration or subject to its rules.12 The method of fixing the price is not so important as that the price should be definite and certain.13 EXECUTED CONTRACTS.-When the vendor has performed his part of the contract by delivering the goods, and the contract is incomplete because no price is agreed upon, or if the price 10. Wilcox v. Young, 66 Mich. 686. 11. Brown v. Bellows, 21 Mass. (4 Pick.) 179. 12. Norton v. Gale, 95 Ill. 533; Smyth v. Craig, 3 W. & S. (Pa.) 14; Bos v. Helsham, L. R. 2 Ex. 72, Benjamin on Sales, § 88. 13. Allen v. Elmore, 121 Ia. 241; Matthews Glass Co. v. Burk, 162 Ind. 608; McConnell v. Hughes, 29 Wis. 537; Cunningham v. Brown, 44 Wis. 72. See cases under notes 7, 8 and 9; 1 Mechem on Sales, § 209, 210. The price to be paid must be certain or some guide must be agreed on by which it can be found with certainty. There may be a sale for a reasonable price in which case if the parties afterward differ, the price must be made certain by the verdict of a jury, or there may be a sale at a price to be afterward fixed by valuers." Wittkowsky v. Wasson, 71 N. C. 451. "If the parties settle between themselves some method by which it may be ascertained at a future period, the maxim id certum est quod certum reddi potest applies, and the price when so settled shall relate to the original contract." McBride v. Silverthorne, 11 U. C. Q. B. 545. Sale of oil on such reasonable terms as would enable the vendee to compete successfully with other parties selling in the same territory, is too indefinite to fix the price. Marble v. Standard Oil Co., 169 Mass. 533. The vendees purchased standing wood to be cut and hauled by them, measured in their yard, and paid for after measurement. A part was burnt before being hauled. "The circumstance that the wood was to be measured and paid for after it was delivered at the defendants' yard is unimportant; that relates to the time and manner of payment and not to the change of title. Where goods are sold and delivered to be paid for on the happening of a certain event,, the vendor will not be deprived of his right to recover merely because the event on which payment is to be made has by accident become impossible. Upon the same principle, when the quantity is to be ascertained by measurement at a particular time or place, or in a particular manner, if such measurement becomes impossible, nevertheless the quantity may be ascertained in some other manner." Upson v. Holmes, 51 Conn. 500, 502. To the same effect is Allen v. Elmore, 121 Ia. 241. When the price is not ascertained and it could not be ascertained with precision in consequence of the thing perishing, nevertheless the seller may recover the price if the risk is clearly thrown on the purchaser by ascertaining the amount as nearly as pos sible. Martineau V. Kitching (1872), L. R. 7 Q. B. p. 436 (sugar shipped at buyer's risk at a fixed price per cwt. destroyed before weighing). 14. Wilkinson v. Williamson, 76 Ala. 163; Greene v. Lewis, 85 Ala. 221; McEwen v. Morey, 60 Ill. 32; Snodgrass v. Broadwell, 12 Ky. (2 Litt.) 353; Jenkins v. Richardson, 29 Ky. (6 J. J. Marsh.) 442; Macomber V. Parker, 30 Mass. (13 |