#### Campbell & Cameron Company, Appellant, vs. Weisse and another, Respondents.

*March 23*

April *19, 1904.*

*Contracts: Entire or apportionahle? Sale of chattels.*

A contract for tlie sale of 200 cords, more or less, of hemlock bark, being tbe entire product of the vendor for the season, at' $5 per cord, to be paid in cash witbin ten days from receipt in carload lots, is apportionable. The vendor may enforce payment for the portion delivered although he fails to deliver the-balance; and the vendee’s right to recover damages for such failure to deliver the whole is not conditioned upon payment, having been made for the portion received.

Appeal from a judgment of the circnit court for Sheboy-gan county: Michael Kirwan, Circuit Judge.

*Reversed.*

This action is brought to recover a balance alleged to bo due upon a contract to deliver hemlock bark to respondents. The contract was evidenced by the following letter:

“Oshkosh, Wis., July 27111, 1901.

"0. *8. Weisse & QoSheboygan*Falls, *Wis.*

“Gentlemen: Eeferring to your letters of July 5, 9 .and 17, will say that we propose to accept your offer of Eive Dollars per cord for Two Hundred cords, more or less, of Hemlock Bark, f. o. b. ears, Pratt’s Junction, Wis., being the entire-product of bark for this season. It is understood that we-have the privilege of shipping the bark as soon as the roads-are frozen and in condition to move the bark.

“Bark to be measured by actual measurement of 128 feet to the cord at Sheboygan Palls, as required by law, and' measurements of each car reported to us at once, especially if your measurements do not agree with invoices.

“Terms: Spot cash within ten days from receipt of cars..

“Respectfully,

“Campbell & Cameeon Co.

“By J. D. Campbell, Sec’y.

“Accepted July 30th, 1901,

“Chables S. Weisse & Co.

“Sheboygan Palls, Wis.

“All cars loaded 20,000 pounds and over, or shipper to> pay freight on short weight.”

*492Between December 30, 1901, and January 13, 1902, appellant delivered eight car loads of bark. Appellant claimed that the cars skipped contained more cords than respondents reported. After shipment of these eight cars appellant refused to deliver more, expressing dissatisfaction with the measurements, whereupon respondents refused full payment •of the amount due on the shipments that had been made, upon the ground that appellant had breached the contract. No more bark was shipped thereafter. The sum of $211.25 was paid appellant on the shipments made by it. The jury found that 81% cords of bark had been delivered under the ■contract; that appellant had 118% cords more, which it refused to deliver; and that bark was worth $7 per cord át Pratt’s Junction, and that respondents were obliged to pur•chase elsewhere in place of the quantity not delivered by appellant. The testimony showed that 50% cords were sold •elsewhere by appellant at Pratt’s Junction that season, after the breach of tire contract, and that they had not to exceed twelve-cords ready for shipment.

Appellant brought action to recover the amount due for the quantity which they claimed had been shipped. Respondents deny that the quantity so claimed was delivered, and counterclaim for damages for the nondelivery of the bark at Pratt’s Junction, by reason of which they were compelled to purchase elsewhere at an advanced price. By special verdict the jury found the quantity of bark delivered to respondents, the amount paid by them to appellant, and that appellant had refused to deliver 118% cords in their possession at Pratt’s Junction. The court awarded damages to respondents on their counterclaim for the nondelivery of 118% cords at $2 per cord, and, after deducting the amount ■of $195, due for bark delivered, entered judgment in respondent’s favor for $42.75 and costs. Before judgment, appellant moved to correct the special verdict by changing the answer to the second question from 118% cords to sixty-three *493cords, which motion was denied. Appellant then moved that the special verdict be set aside, and for a new trial, and this, motion was also denied. This is an appeal from the-judgment.

The canse was submitted for the appellant on the brief of *Phillips & Hicks.*

They contended, *inter alia,*that where-the contract intends that there should be performance in distinct parcels at different times, a breach in respect to any instalment relieves the other party, at his- option, from any further performance. *School Dist. v. Hayne,*46 Wis. 511; *Lindon v. Eldred,*49 Wis. 305; *Corbett v. Anderson,*85 Wis. 218; *Walsh v. Myers,*92 Wis. 397; *Boyington v. Sweeney,*77 Wis. 55.

For the respondents there was a brief by *Bowler & Bowler,*and oral argument by *E. B. Bowler.*

They argued, among: other things, that where the contract is apportionable or divisible, as in this case, after delivery of part and on failure to deliver the whole the vendor may sue for the contract price of that already delivered, and the defendant may counterclaim his damages for. the violation of the contract in not delivering the whole. *Goodwin v. Merrill,*13 Wis. 658; *Sawyer v. C. & N. W. R. Co.*22 Wis. 403; *Gill v. Benjamin,*64 Wis. 362-368; *Schweickhart v. Stuewe,*71 Wis. 1-7; *Hoffman v. King,*70 Wis. 383; *Myer v. Wheeler,*65 Iowa, 390, 21 N. W. 692; *Hansen v. Consumers’ S. H. Co.*73 Iowa, 77, 34 N. W. 495; *Osgood v. Bauder,*76 Iowa, 550, 1 L. R. A. 655; *Winchester v. Newton,*2 Allen, 492.

Seebeceeb, J.

The exception especially urged by appellant bears upon the construction given the contract by the trial court. The foregoing statement of facts shows that appellant contracted with respondents for the sale and delivery of its entire season’s product of hemlock bark of 200 cords, more or less, at $5 per cord; the terms of payment being-cash within ten days from receipt in carload lots. The court. *494held the contract apportionable. An inspection of its terms discloses that the bark as purchased was to be delivered in definite portions, and that the price of each portion was payable upon delivery at the fixed contract price, and that such payment was not conditioned upon the delivery of the remaining portions of the season’s, product, nor was the requirement of a full delivery of the quantity purchased conditioned upon payment having been made for the portions shipped. Respondents’ default of payment for any carload shipment at the time agreed upon gave appellant a right to enforce payment for the quantity delivered, regardless of its intention to fully perform its obligation to deliver the remainder of the bark. Respondents were likewise entitled to insist upon full performance of the contract in having the quantity purchased delivered, though there be default in payment of the quantity delivered, upon the ground that the payment for such delivery is not a condition precedent to the complete performance of the contract by appellant. Appellant failed to deliver all of the bark covered by the contract, •and therefore became liable to respondents for the damages resulting from such breach. *Goodwin v. Merrill,*13 Wis. 658; *Widman v. Gay,*104 Wis. 277, 80 N. W. 450; *Palm v. O. & M. R. Co.*18 Ill. 217; *Christian Co. v. Overholt,*18 Ill. 223.

It is claimed by appellant that the court erred in refusing to set aside the finding of the jury as to the quantity of bark it failed to deliver under the contract. The jury found that it amounted to 118% cords. We are unable to find any evidence in the case supporting this finding. The only evidence bearing upon the question of the quantity of bark appellant had at Platt’s Junction was the testimony of its woodman, Mr. Henke, who fixed the quantity at not to exceed sixty-three cords. Upon this state of the proof the court should have granted the motion to change the answer to the second question in the special verdict, striking out the finding that *495appellant failed to deliver 118% cords of bark under tbe contract, and substituting the quantity shown by the undisputed evidence, sixty-three cords. There is no claim that the dam- ’ ages to respondents for the breach of the contract-was other than at the rate of $2 per cord for the undelivered quantity, making a total of $126; nor is there any controversy but that respondents owed a balance of $195 for the portion delivered before suit was commenced. Appellant was entitled to judgment for the difference between the balance so found due it for the bark delivered and the amount of damages respondents sustained by appellant’s failure to deliver the entire quantity covered by the contract, with the costs of the action.

*By the Court.*— The judgment of the circuit court is reversed, and the cause remanded with directions to amend the special verdict by changing the answer to the second question, and to enter judgment in appellant’s favor for the balance due it as specified in the opinion, with costs.