Shrimpton & Sons v. Warmack , 72 Miss. 208 ( 1894 )

Cooper, C. J.,

delivered the opinion of the court.

If the plaintiffs failed to deliver to the defendant the quantity of goods contracted for, there was no execution on their part of the contract, and no right of action if the defendant refused to accept the lesser quantity. Benj. on Sales, § 689; Brawley v. United States, 96 U. S., 168. The first, second and fourth instructions asked by the plaintiffs were, therefore, properly refused.

The second instruction for the defendant should not have been given. By it the jury was told that “ the court instructs the jury to find for the defendant if they believe, from the evidence, that the needles were not suitable for the leading machines in the locality of Pluto, Miss., or the quantity shipped was less than one great gross, or that some of the papers contained more than two needles in each paper.” The needles were sold at a price per paper, and the papers were to contain,, each, two needles. If a sufficient number of papers were sent to fulfill the contract if each contained two needles, the defendant could not be injured if some of the papers contained-three instead of two. The plaintiffs, in such event, not only fulfilled, but more than fulfilled, their contract. If one agrees to sell a given number of articles at a certain price, and delivers more than the number without any additional charge, it cannot be said that he has not performed his agreement.

The judgment is reversed.