{ "id": 5207147, "name": "Rothschild Bros. v. E. B. Wise", "name_abbreviation": "Rothschild Bros. v. Wise", "decision_date": "1899-03-10", "docket_number": "", "first_page": "95", "last_page": "100", "citations": [ { "type": "official", "cite": "81 Ill. App. 95" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "104 Ill. 201", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5348700 ], "opinion_index": -1, "case_paths": [ "/ill/104/0201-01" ] }, { "cite": "114 Ill. 31", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "55 Ill. 44", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5273247 ], "opinion_index": -1, "case_paths": [ "/ill/55/0044-01" ] }, { "cite": "165 Ill. 550", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3105013 ], "opinion_index": -1, "case_paths": [ "/ill/165/0550-01" ] }, { "cite": "165 Ill. 544", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3104380 ], "opinion_index": -1, "case_paths": [ "/ill/165/0544-01" ] }, { "cite": "86 Ill. 133", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2771638 ], "opinion_index": -1, "case_paths": [ "/ill/86/0133-01" ] }, { "cite": "50 Ill. App. 434", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5120827 ], "opinion_index": -1, "case_paths": [ "/ill-app/50/0434-01" ] }, { "cite": "32 Conn. 146", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 535560 ], "opinion_index": -1, "case_paths": [ "/conn/32/0146-01" ] }, { "cite": "65 Ill. 512", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2618291 ], "opinion_index": -1, "case_paths": [ "/ill/65/0512-01" ] }, { "cite": "49 Ill. 275", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2602128 ], "opinion_index": -1, "case_paths": [ "/ill/49/0275-01" ] }, { "cite": "19 Ill. App. 565", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4901497 ], "opinion_index": -1, "case_paths": [ "/ill-app/19/0565-01" ] }, { "cite": "45 Ill. 496", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 424969 ], "opinion_index": -1, "case_paths": [ "/ill/45/0496-01" ] }, { "cite": "9 Ill. App. 112", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2411233 ], "opinion_index": -1, "case_paths": [ "/ill-app/9/0112-01" ] }, { "cite": "6 Ill. App. 212", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4749406 ], "opinion_index": -1, "case_paths": [ "/ill-app/6/0212-01" ] }, { "cite": "103 Ill. 86", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2805242 ], "opinion_index": -1, "case_paths": [ "/ill/103/0086-01" ] }, { "cite": "60 Ill. 158", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8500117 ], "opinion_index": -1, "case_paths": [ "/ill/60/0158-01" ] }, { "cite": "50 Ill. 85", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2607214 ], "opinion_index": -1, "case_paths": [ "/ill/50/0085-01" ] }, { "cite": "14 Ill. 324", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2585158 ], "opinion_index": -1, "case_paths": [ "/ill/14/0324-01" ] }, { "cite": "75 Ill. 205", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2700170 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/75/0205-01" ] }, { "cite": "105 Ill. 535", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "60 Ill. App. 359", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5157097 ], "opinion_index": -1, "case_paths": [ "/ill-app/60/0359-01" ] }, { "cite": "93 Ill. 265", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2735953 ], "opinion_index": -1, "case_paths": [ "/ill/93/0265-01" ] }, { "cite": "42 Ill. 223", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5294682 ], "opinion_index": -1, "case_paths": [ "/ill/42/0223-01" ] }, { "cite": "149 Ill. 348", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "121 Mass. 91", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 742594 ], "opinion_index": 0, "case_paths": [ "/mass/121/0091-01" ] }, { "cite": "38 Iowa, 64", "category": "reporters:state", "reporter": "Iowa", "opinion_index": 0 }, { "cite": "75 Ill. 207", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "105 Ill. 536", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "60 Ill. App. 359", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5157097 ], "opinion_index": 0, "case_paths": [ "/ill-app/60/0359-01" ] } ], "analysis": { "cardinality": 557, "char_count": 10670, "ocr_confidence": 0.554, "pagerank": { "raw": 2.69710485154101e-07, "percentile": 0.8281025264407307 }, "sha256": "9b9f978492152c9bae2feea51ed8f22d8d3d9d824e2d7f48986641f12b7c33d3", "simhash": "1:736456d37ee7baf4", "word_count": 1926 }, "last_updated": "2023-07-14T15:36:26.617706+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Rothschild Bros. v. E. B. Wise." ], "opinions": [ { "text": "Me. Justice Worthington\ndelivered the opinion of the court.\nIt will be seen from this statement that Eothschild, the salesman, and Wise, the acting purchaser, are the only two persons who know of their own knowledge, what hats were bought. Eothschild testifies that the hats shipped were of the same kind and quality as the samples shown. Wise, the purchaser, testifies that the hats sent out of thirteen \u201cdots \u201d were not. That the hats from these thirteen \u201c lots \u201d were of the vintage of 1895, while he bought hats for the market of 1896.\nThe jury believed Wise, and found for appellee. We see no reason for interfering with their finding upon this issue.\nAppellant insists that the court erred in holding that appellee could receive a part of the goods sold that were according to sample, and could return those that were not. In other words, appellant insists that the contract of purchase was an entire contract, and not divisible, and that appellee had to take all the hats or none. This is not the law as we understand it, in a case like this.\nIf the hats purchased had been p.11 of one \u201clot,\u201d the contention of appellant would be correct. In such case the purchaser, if he desired to rescind the contract, would have to return the entire \u201c lot.\u201d This is. decided by Harzfield v. Converse, 105 Ill. 536, and Wolf v. Dietzsch, 75 Ill. 207 cited by appellant.\nIn Telford v. Albro, 60 Ill. App. 359, a part of the neck wear had been sold, and the remainder was burned up with the store. The question presented in the case at bar did not come up in the cases above referred to.\nIn Story on Contracts, Vol. 1, Sec. 24, it is said :\n\u201cIn this diversity of cases, it is difficult to state any rule. But on the whole the weight of opinion and the more reasonable rule would seem to be, that where there is a purchase of different articles, at different prices, at the same time, the contract would be several as to each article, unless the taking of the whole was rendered essential, either by the nature of the subject-matter or by the act of the parties.\u201d\nMany authorities might be cited in support of this proposition. We cite only the following:\n\u201c An agreement is divisible when it embraces several undertakings each supported by a distinct consideration.\u201d McDaniels v. Whitney, 38 Iowa, 64.\n\u201c When many different articles are bought at the same time for different prices, even if they are articles of the same general description, so that a warranty that they are all of a particular quality would apply to each, the contract is not entire, but it is in effect a separate contract for each article sold.\u201d Young & Co. v. Wakefield, 121 Mass. 91.\nIn Bank of Antigo v. Union Trust Co., 149 Ill. 348, the court say:\n\u201c The rule' laid down by Parsons, Vol. 2, p. 257, is, \u2018 If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be several.\u2019\u201d\nAnd Wharton says, Sec. 748, Laws of Contracts :\n\u201c When a consideration is divisible and the price can be apportioned, then if a distinct divisible portion of the consideration fails, the price paid for such portion can be recovered back,\u201d and that \u201cin cases * * * in which the consideration is divisible, the purchaser may elect to take what can be delivered to him, and in such case, if the purchase money has been paid, he can recover back the excess, or if there has been no payment he can defend pro tanto.\u201d\nThis case also cites Young & Co. v. Wakefield, cited supra.\nIn the case \u00e1t bar the hats from each \u201c'lot \u201d had a separate price, and were put down on the memorandum as of that \u201c lot \u201d with the price annexed. The hats in each \u201c lot \u201d were in effect separate sales. There is nothing to indicate that the price of the hats in any one \u201c lot,\u201d was in any way influenced by the price of hats in any other \u201c lot,\u201dor that their sale depended upon the sale of liats from other \u201c lots.\u201d\nThe bargain and sale lacked the elements of an entire contract and could be affirmed in part and rescinded in part;\nThe introduction of certain bills by appellee to prove a custom of wholesale dealers in St. Louis to take back goods when not satisfactory was objected to by appellant.\nIt was error to admit these bills for that purpose, but in view of all the testimony in the case we'do not think it reversible error.\nJ udgment affirmed.", "type": "majority", "author": "Me. Justice Worthington" } ], "attorneys": [ "C. E. Cook, attorney for appellants.", "Wm. H. Dawdy, attorney for appellee." ], "corrections": "", "head_matter": "Rothschild Bros. v. E. B. Wise.\n1. Sales\u2014By Sample\u2014Contracts Entire and Divisible.\u2014Where there is a purchase of different articles, at different prices, at the same time, the contract will be several as to each article, unless the taking of the whole is rendered essential, either by the nature of the subject-matter or by the act of the parties.\n2. Same\u2014Where the Contract is Not Entire.\u2014Where many different articles are bought at the same time for different prices, even if they are articles of the same general description, so a warranty that they are all of a particular quality would apply to each, the contract is not entire, but is in effect a separate contract for each article sold.\n3. Contracts\u2014Where a Contract is Several.\u2014If the part of a contract of sale to be performed by the vendor, is the furnishing of several distinct and separate articles, and the price to be paid by the other is apportioned to each article, or is left to be implied by law, such a contract will generally be held to be several.\n4. Same\u2014Partial Failure of the Consideration.\u2014When a consideration is divisible and the price can be apportioned, if a distinct divisible portion of the consideration fails, the price paid for such portion can be recovered back; in cases where the consideration is divisible, the purchaser may elect to take what can be delivered to him, and, if the purchase money has been paid, he can recover back the excess, or if there has been no payment he can defend pro tanto.\nAssumpsit, for goods sold. Trial in the County Court of Bond County, the Hon. Joseph Story, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiffs.\nHeard in this court at the August term, 1898.\nAffirmed.\nOpinion filed March 10, 1899.\nC. E. Cook, attorney for appellants.\nThe sale of a specific number of packages of an article at a given price per package, is an entire contract. Such a purchase can not be rescinded as to some packages and not rescinded as to others. Am. & Eng. Ency. of Law, Vol. 3, p. 918 and 919.\nContracts must be enforced with all their terms and conditions. A party can not repudiate terms unfavorable to him and claim benefit of residue. King v. Mason, 42 Ill. 223; Kellogg & Co. v. Turpie, 93 Ill. 265.\nThe right to return goods sold by sample, as not being equal to the sample, is a right to return all or none. Telford v. Albro et al., 60 Ill. App. 359; Harzfeld et al. v. Converse, 105 Ill. 535; Wolf et al. v. Dietzsch, 75 Ill. 205.\nA custom, to avail as such, must be ancient, certain, uniform, reasonable, and so general as to afford a presumption that the parties contracted with reference to it. Dixon v. Dunham, 14 Ill. 324; Turner v. Dawson et al., 50 Ill. 85;. Leggat v. Sands\u2019 Ale Brewing Co., 60 Ill. 158; Papin et al. v. Goodrich et al., 103 Ill. 86; Sweet v. Leach, 6 Ill. App. 212; Decatur Nat\u2019l Bank v. Murphy, 9 Ill. App. 112.\nWm. H. Dawdy, attorney for appellee.\nIn a sale by sample there is an implied warranty\u2014more properly a condition precedent\u2014that the goods, when delivered, shall correspond to the sample by which the sale is made in kind, character and quality. Hanson v. Busse, 45 Ill. 496; Everingham v. Lord, 19 Ill. App. 565; Hubbard v. George, 49 Ill. 275.\nIt is an implied condition, in sales by sample, that the buyer shall have a fair opportunity of comparing the bulk with the sample. Am. & Eng. Ency., Vol. 10, page 162, Note 2; Doane et al. v. Dunham, 65 Ill. 512.\nAnd upon refusal to accept, in such case, the burden of proving that the article corresponded to the sample is upon the vendor. Am. & Eng. Ency., Vol. 10, page 169, Note 2; Merriman v. Chapman, 32 Conn. 146; Wolf et al. v. Dietzsch, 75 Ill. 205.\nDelivery of goods by seller, when sold by sample, will not be a delivery so as to pass title, when the goods do not correspond with the sample. Am. & Eng. Ency., Vol. 10, page 169, Note 2.\nIn sales of goods, when the part to be performed by one party consists of several distinct and independent items, and the price to be paid by the other is apportioned to each item, the contract is severable. Am. & Eng. Ency. Law, Vol. 3, page 925; Bank of Antigo v. Union Trust Co., 50 Ill. App. 434; Mechanics\u2019 Natl. Bank of Peoria v. Fraser, 86 Ill. 133; Keeler v, Clifford, 165 Ill. 544; Siegel v. Eaton & Prince Co., 165 Ill. 550.\nOn entering into a commercial contract, it is presumed that the parties made it in view of the custom or usage of the trade. Lonergan v. Stewart, 55 Ill. 44; Gilbert & Co. v. McGinnis et al., 114 Ill. 31; Pennsylvania Co. v. Stoelke, 104 Ill. 201.\nStatement of the Case.\u2014Appellee, through his son, purchased a bill of goods from appellants, wholesale dealers in St. Louis, on.the 22d of January, 1896, amounting to $140.30. They were received by appellee on the 25th of January, at his store in Greenville, in this State. A part of the goods, amounting to $41.58, were immediately returned, as not corresponding with samples. The remainder of the bill, $91.90, was paid, and -this suit is to recover $41.58, the price of the goods returned.\nE. E. Wise, a young man twenty-four years of age, a son of appellee, and a clerk in his father\u2019s store, bought the goods in question, which consisted of hats of different kinds,' referred to in the bill as \u201c lots,\u201d selecting them by samples shown him in the store of appellant. The manner of selection was as follows: Albert Rothschild, one of the plaintiffs, acting as salesman, showed to Wise, samples, one sample representing a certain \u201clot\u201d of hats. From these samples Wise bought, specifying the number to be taken from each \u201clot,\u201d which number with the number of the \u201clot,\u201d and the price, Rothschild entered on a memorandum. After the purchase was completed, the memorandum was given to the stock clerk who took from the different \u201c lots \u201d the number specified in the memorandum and placed them in a stall, where they were packed and shipped to the purchaser. Neither Wise nor Eothschild had anything more to do with the hats after making the memorandum. From the record it appears that there were forty-one different \u201c lots \u201d selected from, and the hats sent from thirteen \u201c lots \u201d were returned, as not corresponding to the. samples shown of these \u201c lots.\u201d" }, "file_name": "0095-01", "first_page_order": 101, "last_page_order": 106 }