## Facts

- Sellers agreed in one written contract to sell a buyer (1) 88 “dressed” hogs at \$0.07 per pound and (2) a specified quantity of live hogs at \$0.0525 per pound.
- The dressed hogs were to be delivered immediately; the live hogs were to be delivered later after arriving from another state.
- The contract contained no credit terms; payment was therefore due upon delivery as a concurrent condition with delivery.
- Sellers delivered the dressed hogs on the contract date, but the buyer did not pay upon delivery.
- When the live hogs later arrived, sellers did not tender them to the buyer and instead slaughtered and sold them to third parties.
- Sellers sued to recover the contract price for the dressed hogs already delivered; the buyer argued sellers’ failure to deliver the live hogs barred recovery under the single contract.

## Issues

1. Whether the agreement was “entire” such that delivery of all hogs (including the live hogs) was a condition precedent to the buyer’s duty to pay for the dressed hogs.
2. Whether the contract was divisible so that the seller could recover the price for the dressed hogs delivered, with the buyer limited to damages for the nondelivery of the live hogs.

## Decision

- The Court of Appeals of New York affirmed judgment allowing sellers to recover the price of the dressed hogs, reduced by the buyer’s damages for sellers’ failure to deliver the live hogs.
- The court treated the contract obligations “distributively,” concluding the transactions were separable because they involved different goods, different prices, and different delivery times.
- The buyer’s duty to pay for the dressed hogs accrued upon their delivery (no credit having been agreed), and sellers’ later breach regarding the live hogs did not extinguish that accrued right.
- The proper remedy for the buyer was a setoff (or damages) for the nondelivery of the live hogs, not a complete defense to paying for goods received.

## Legal Principles

- A party who fails to perform some contract provisions is not automatically barred from recovering for the other party’s breach; the key inquiry is whether the unperformed stipulation was a condition precedent to the defendant’s duty.
- In sales without credit or delay, delivery and payment are generally concurrent conditions; neither party may sue without offering performance as to the obligation at issue.
- A single written agreement may be divisible when its components differ in subject matter, consideration, and time of performance; performance and payment obligations may then be enforced separately.
- When a divisible portion of a contract has been fully performed and accepted, the performing party may recover the agreed price for that portion, subject to deduction for the other party’s damages caused by breach of a separate portion.

## Conclusion

The court held the hog-sale agreement was divisible: sellers could recover the contract price for the dressed hogs delivered and accepted, while the buyer’s remedy for nondelivery of the live hogs was a damages setoff rather than a bar to payment for goods received.


Tipton v. Feitner, 20 N.Y. 423 (N.Y. 1859)