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.

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.

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.

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."

[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solely for the purpose of ascertaining the total amount to be paid, then the contract is entire and, ordinarily, if rescinded at all, must be rescinded in toto.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.

3. If Frank, Herman Co. were induced to make the sale of the goods in controversy to B.F. Loyd on false representations made by the said Loyd at the time of the sale as to his financial condition and solvency, then upon the discovery of the fraud Frank, Herman Co. had the right to rescind the sale and recover the goods sold; but if after they discovered that such statements were false and with full notice of the fraud of said Loyd, they treated the contract as still existing and proceeded to collect a part of the purchase money of the goods sold, they thereby affirmed the sale and forever lost the right to rescind the sale. Mansfield v. Trigg, 113 Mass. 350; Moore v. Brackett, 98 Mass. 205; 3 A. E. Enc. L., p. 726, 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 Estoppel, secs. 1039, 1040; Ryan v. Brant, 42 Ills., 78; Moriarity v. Stofferans, 89 Ills., 528; Estes v. Reynolds, 75 Mo., 563; Wright v. Zigler, 70 Ga. 501, 512; Farwell v. Meyers, 59 Mich. 184. DeGraffenried Young and T.B. Stinchcomb, for appellees. — 1. The interests of the several plaintiffs in this suit are so nearly identical, as to make them but one party, in the sense in which that term is used in the statute, and all plaintiffs together were entitled only to six peremptory challenges. 2 Sayles' Civ. Stats., art. 3034; Hargrave v. Vaughn, 18 S.W. Rep., 695; Jones v. Ford, 60 Tex. 127.

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 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.

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.