(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, § 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.

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.

This would be but to permit the defendants in error to set aside the contract in part for fraud, in so far as against their interest, and to enforce that part of the contract beneficial to them; in other words, to retain all the benefits of the contract and escape its obligation on account of the fraud, which would be in direct violation of the fundamental principle governing the rescission of contracts, to wit, that same must be repudiated as a whole or affirmed as a whole. Caldwell v. Dutton, 20 Tex. Civ. App. 369, 49 S.W. 723; Paige on Contracts, vol. 1, § 353; 13 C.J. 623; Continental Jewelry v. Pugh, 168 Ala. 295, 53 So. 324, Ann.Cas. 1912A, 657; Syme-Eagle Co. v. Joplin Gro. Co., 206 Mo. App. 357, 229 S.W. 246; Mansfield v. Trigg, 113 Mass. 350; Morse v. Brackett, 98 Mass. 205. The contract of sale in this case was entire, in that but one consideration was paid for the 900 bundles of hoops.

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 refuses 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 * * *. But if the breach of the contract on the part of the seller is only in the quality, the other party cannot convert that into a rescission, but must, if he intends to rescind at all, rescind in toto." ( Mansfield v. Trigg, 113 Mass. 350, 353.) This is a very good statement of the common law which obtains in this jurisdiction.

[Young C. Mfg. Co. v. Wakefield, 121 Mass. 91.] But when a certain quantity of goods, or a certain number of similar articles, are purchased as one transaction, the price being fixed by a measure or by one article, and the measuring or counting is done solely for the purpose of ascertaining the total amount to be paid, then the contract is entire and, ordinarily, if rescinded at all, must be rescinded in toto. [Mansfield v. Trigg, 113 Mass. 350; Morse v. Brackett, 98 Mass. 205.] I think this contract was entire, and, as rescission in toto cannot be made, and insolvency not being alleged or shown, and no other reason appearing why a court of equity should interfere, I agree that plaintiff cannot recover in this action.

The implication to be derived from a delivery of goods contracted for mixed with those of an entirely different kind is manifestly that the latter may not be intended at all for delivery under the contract. Indeed, in a leading Massachusetts case ( Garnder v. Lane, 12 Allen, 39) it was held that no property passed to the vendee in goods (included in the delivery) of a kind different from those specified in the contract. See also for the distinction in this respect between kind and quality, Mansfield v. Trigg, 113 Mass. 350, 354: "The entirety may be broken by the concurrent act of both parties, so that a partial rescission may be effected. * * * But if the breach of contract on the part of the seller is only in the quality, the other party cannot convert that into a rescission, but must, if he intends to rescind at all, rescind in toto." Finally, I cannot avoid the inference that the title of section 125, namely, "delivery of a wrong quantity," is no less inept to describe a case like the one at bar, than are the words of subdivision 3, which we are considering, i.e., "Where the seller delivers * * * the goods he contracted to sell mixed with goods of a different description not included in the contract."

The sale to Lloyd by appellees could not be rescinded in part and affirmed in part. Mansfield v. Trigg, 113 Mass. 350; Moore v. Brackett, 98 Mass. 205; 3 Am. Eng. Enc. Law, 926, note 1; Kinney v. Kiernan, 49 N.Y. 165; Wheaton v. Baker, 14 Barb., 594; Powers v. Benedict, 88 N.Y. 605; Molla v. Tuska, 87 N.Y. 166; Herman on Est., secs. 1039, 1040; Ryan v. Brant, 42 Ill. 78; Moriarity v. Stofferans, 89 Ill. 528; Estes v. Reynolds, 75 Mo., 563; Wright v. Zigler, 70 Ga. 501, 512; Farwell v. Meyers, 59 Mich. 184. 2.