(See Gravenhorst v. Zimmerman, 236 N.Y. 22; Goepel v. Zimmermann, 205 App. Div. 842; Safian v. Irving National Bank, 236 N.Y. 513.) In Mansfield v. Trigg ( 113 Mass. 350) the court, writing with reference to the severability of a contract, said: "The entirety may be broken by the concurrent act of both parties, so that a partial rescission may be effected. Thus when a part only of the goods have been delivered, upon a contract like the present, and one party refuses to complete it by delivering or accepting the remainder, the other party may then elect to treat such refusal as a repudiation or rescission of the unfulfilled part of the contract. If the seller refuse to deliver, the purchaser may recover back any excess of purchase money that has been paid by him, beyond the price of what has been delivered.
Ger. Savings Institution v. De la Vergne Ref. Mach. Co., 36 U.S. App. 184, and cases there cited; Story on Sales, ยง 427; Bigelow on Estoppel, (5th ed.) 552; 3 Wait's Act. Def., 483; Mansfield v. Trigg, 113 Mass. 350; Miller v. Tiffany, 1 Wall. 298; Andrews v. Hensler, 6. Wall. 254; Reeves v. Corning, 51 F. 774; Union Nat. Bank v. Matthews, 98 U.S. 621; Washburn Mill Co. v. Bartlett, 54 N.W. 544. XVII. De la Vergne having entered his general appearance in these causes in his lifetime, upon his death the suits were lawfully revived against the administrator of his estate in Missouri.
Under such circumstances, the power of rescission exists as to each installment. See Rubin v. Sturtevant, supra, page 932, and A.K. Young Conant Mfg. Co. v. Wakefield, supra; the latter case expressly distinguishing Mansfield v. Trigg, 113 Mass. 350, so strongly relied upon in argument. The contract was made in New York, and is to be decided according to the law of that state.
The courts will not entertain a citizen action to recoup public funds from private individuals. See Metro v. Fulton, 701 S.W.2d at 600; Trigg v. Mansfield, 648 S.W.2d 946 (Tenn. App. 1982) (distinguishing State ex rel. Vaughn v. King, 653 S.W.2d 727 (Tenn. App. 1982)). The Badgett case has been given different interpretations by the parties here, as well as by the lower courts, but it is particularly apposite.
While such actions have occasionally been permitted by private individuals, this has been done only under limited and special circumstances, none of which appear here. In Trigg v. Mansfield, 648 S.W.2d 946 (Tenn. App. 1982) the Court of Appeals permitted such a suit to proceed in the name of the State of Tennessee, where members of the county commission were also joined in the action and it was alleged that after learning of improper and unauthorized payments they failed to take any action. Cited in the Trigg case as authority for permitting such suits by private citizens were the cases of Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579 (1955) and Peeler v. Luther, 175 Tenn. 454, 135 S.W.2d 926 (1940).
This is settled by our own decisions. Clark v. Baker, 5 Met. 452. Morse v. Brackett, 98 Mass. 205. Mansfield v. Trigg, 113 Mass. 350. Craig v. Lane, 212 Mass. 195. Carver-Beaver Yarn Co. Inc. v. Wolfson, 249 Mass. 257. The plaintiff as buyer could not treat each bag as a separate subject of sale, but must accept or reject the shipment as a whole. It could not accept part and reject part. Roach v. Lane, 226 Mass. 598. The same evidence was introduced as to the law of New York on this point as was before the court in Shohfi v. Rice, 241 Mass. 211, where at page 214 it was said: "The uniform doctrine of these decisions . . . is that the contract in question was entire, and the defendants having accepted and retained part of the goods became bound to pay for the whole shipment."
Assumpsit is not the proper form of action to recover such damages, as there was no promise express or implied on the part of the defendant to pay any definite sum or one capable of ascertainment by a computation. Miner v. Bradley, 22 Pick. 457. Hill v. Rewee, 11 Met. 268. Mansfield v. Trigg, 113 Mass. 350. See Jordan v. Phelps, 3 Cush. 545, 548; Benson v. Monroe, 7 Cush. 125. The exceptions relating to this subject are overruled.
He must seek his remedy under the contract by way of set-off or recoupment, or by an independent action. Morse v. Brackett, 98 Mass. 205. Mansfield v. Trigg, 113 Mass. 350. Barrie v. Earle, 143 Mass. 1. Obery v. Lander, 179 Mass. 125, 130. Fullam v. Wright Colton Wire Cloth Co. 196 Mass. 474, 476. Exceptions overruled.
Henshaw v. Robins, ubi supra. Mansfield v. Trigg, 113 Mass. 350. The failure of the plaintiffs to meet this requirement in delivery resulted in a total failure of consideration, which justified the defendant in a complete repudiation of the sale. Henshaw v. Robins, ubi supra.
This right of the vendee, under an executory agreement of sale, to return goods which do not conform to the description in the contract, when there is no agreement for such return and no fraud upon the part of the vendor, arises, not from the existence of a warranty, or a breach thereof, nor from any express or implied power of rescission, but from the right of the vendee to reject and return goods he never agreed to buy, and the title to which has not passed to him. Benj. on Sales (2d Amer. Ed.), ยงยง 600, 887, 888, 895; Mansfield v. Trigg, 113 Mass. 350, 354; Osborn v. Gantz, 60 N.Y. 540. But in the absence of fraud and of any special agreement, such right of return in this case did not exist after delivery of the goods agreed upon and their acceptance by the vendee.