Herzog v. Purdy

Citations

• 119 Cal. 99
• 51 P. 27
• 1897 Cal. LEXIS 859

Syllabus

<p>Sake—Severable Contract—Different Items—Acceptance.—A contract for the sale of different kinds of personal property, at an agreed price for the different items, is severable, in the absence of any thing in the contract to show that the sale of one item was contingent upon the sale of the others, or that the contract was for any other reason an entirety; and the refusal of the purchaser to accept a tender of one of the items does not operate to waive or excuse performance, or offer of performance, by the seller as to the other items.</p> <p>Id.—Resale by Seller—Performance.—Upon the refusal of the purchaser to accept a tender as to one of the items, a resale by the seller of all the property incapacitates him from any performance whatever, and releases the purchaser from the necessity of further demand or tender of performance as to the other items, and as to them subjects the seller to liability.</p> <p>Id.—Part Payment—Forfeiture.—Where, at the time of the execution of such contract, the buyer made a payment which the seller receipted for “on account,” the subsequent refusal of the buyer to accept one of the items does not work a forfeiture of the payment, but it is his right to have it applied on the price of any of the items which he accepted.</p>