Bijur, J.
Nothing but a question .of law is involved in this appeal. The case was tried largely upon concessions from which it appears that the plaintiff had sold to the defendant “ four pieces of merchandise consisting of 215% yards, aggregating in all $638.99.” Defendant, claiming that two of these pieces were “ shaded and defective,” offered to return them, but kept and used the other two pieces.
The learned judge below found as a fact that the two pieces rejected were shaded and defective. Defendant tendered $311.91, and it was conceded that “ the return of those two (i. e., the rejected) pieces represents $327.08.”
On this rather unsatisfactory record the respective [305]*305counsel are agreed that the only question is whether the acceptance and use of part of the shipment involved an acceptance of all so that defendant would be remitted to a counterclaim for his damages by reason of the defective character of the two rejected pieces; or whether defendant was at liberty, as has been held below, to pay for only what he accepted and reduce plaintiff’s claim by way of defense in the amount of the contract price apportion-able to the two pieces rejected.
Both counsel and the learned judge below agree that under the law as it existed prior to the enactment of the Personal Property Law the acceptance of part of an entire shipment would in the absence of a special agreement or of peculiar circumstances imply an acceptance of the whole. Simon v. Wood, 17 Misc. Rep. 607; Mendetz v. Wood & Co., 86 id. 52; Pierson v. Crooks, 115 N. Y. 539, 554; Maynard & Cheeves v. Render, 95 Ga. 652; Buckeye Buggy Co. v. Montana Stables, 43 Wash. 49; Wolf v. Deitzsch, 75 Ill. 205, 210.
As Bischoff, J., well puts it in Simon v. Wood, supra: “ The contract was entire, and the defendant could not arbitrarily retain of the whole number such as suited him and decline to receive the remainder. If all of the caps delivered did not come up to the required standard he was not bound to accept any of them. Neither was the plaintiff’s assignor bound to be content with the defendant’s acceptance of a part only of the caps agreed by the latter to be accepted by him. It was the defendant’s duty either to retain all, or to reject all, in the absence of an agreement permitting him to do otherwise. Having accepted the caps in part the defendant must be deemed to have accepted them all.”
Professor Williston in a note to section 493 of his notable work on Sales expresses the same idea in the following words: “If the buyer can accept some and [306]*306reject others, the seller must equally be at liberty to make a valid tender of some and not others.”
The learned judge below based his determination in favor of defendant’s contention on section 156 of the Personal Property Law, which reads: “ Definitions: 1. In this article, unless the context or subject matter otherwise requires: ‘ Divisible contract to sell or sale ’ means a contract to sell or a sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation. ’ ’
As appellant points out, however, the phrase “ divisible contract to sell or sale ” appears nowhere else in the Personal Property Law, except in sections 88 and 89, referring to “ Destruction of goods sold ” and “ Contracted to be sold,” respectively, which plainly have no bearing on the instant question. Under these circumstances, I do not think that it was intended by this mere unrelated “ definition ” to change the state of the law existing at the time of the enactment.
Moreover, the entirety of a contract and of the respective obligations of the parties thereunder is not affected by the fact that in one sense it may be regarded as “ divisible.” This distinction is noted in Barrie v. Earle, 143 Mass. 1, 4, where the court, quoting from prior decisions, holds that a contract may be “ one and entire in its origin ” yet “ divisible in its operation.” Such a contract might well be defined as divisible, and yet the respective obligations of the parties remain single and entire. To the same effect, see Norrington v. Wright, 115 U. S. 188, 203.
It remains, however, to consider the effect of section 125 of the Personal Property Law, to which no' reference was made below. That section reads:
“ Sec. 125. Delivery of wrong quantity * * * * * [307]*307(3) Where the seller delivers to the buyer the goods ho contracted to sell mixed with goods • of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.”
It is evident to me that section 125, as its title indicates, was intended to cover only cases where the wrong quantity of goods may have been delivered. The 1st subdivision provides for the case of “ a quantity of goods less than he (the seller) contracted to sell;” the 2d subdivision relates to the delivery of “ a quantity of goods larger than he contracted to sell;” the 3d subdivision covers the case of a delivery of the goods contracted for mixed with goods of a different description.
It is possible to interpret the 3d subdivision to include the instant case by reading the word “ doseription ’ ’ in its technical significance as indicating quality rather than kind, in which sense it has ordinarily been employed only in apposition to express warranty. I do not think, however, that the framers of the act intended it to be so understood.
Williston, in section 402, discusses this particular subdivision of section 125 and speaks of the case covered thereby as one “ When the buyer’s offer is of goods which the contract or order called for, mingled with other goods of a different hind.” That the inferences to be drawn from such a situation are entirely different from those arising out of the ease where some of the goods offered for delivery are merely defective in quality is quite apparent from his discussion under sections 459-461. It is significant that he discusses “Acceptance of part of the goods ” under section 493, which is part of his comment upon section 129 of the act entitled “ What constitutes acceptance” and not under section 125 relating to [308]*308delivery of a wrong quantity. 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,
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Bijur, J.
Nothing but a question .of law is involved in this appeal. The case was tried largely upon concessions from which it appears that the plaintiff had sold to the defendant “ four pieces of merchandise consisting of 215% yards, aggregating in all $638.99.” Defendant, claiming that two of these pieces were “ shaded and defective,” offered to return them, but kept and used the other two pieces.
The learned judge below found as a fact that the two pieces rejected were shaded and defective. Defendant tendered $311.91, and it was conceded that “ the return of those two (i. e., the rejected) pieces represents $327.08.”
On this rather unsatisfactory record the respective [305]*305counsel are agreed that the only question is whether the acceptance and use of part of the shipment involved an acceptance of all so that defendant would be remitted to a counterclaim for his damages by reason of the defective character of the two rejected pieces; or whether defendant was at liberty, as has been held below, to pay for only what he accepted and reduce plaintiff’s claim by way of defense in the amount of the contract price apportion-able to the two pieces rejected.
Both counsel and the learned judge below agree that under the law as it existed prior to the enactment of the Personal Property Law the acceptance of part of an entire shipment would in the absence of a special agreement or of peculiar circumstances imply an acceptance of the whole. Simon v. Wood, 17 Misc. Rep. 607; Mendetz v. Wood & Co., 86 id. 52; Pierson v. Crooks, 115 N. Y. 539, 554; Maynard & Cheeves v. Render, 95 Ga. 652; Buckeye Buggy Co. v. Montana Stables, 43 Wash. 49; Wolf v. Deitzsch, 75 Ill. 205, 210.
As Bischoff, J., well puts it in Simon v. Wood, supra: “ The contract was entire, and the defendant could not arbitrarily retain of the whole number such as suited him and decline to receive the remainder. If all of the caps delivered did not come up to the required standard he was not bound to accept any of them. Neither was the plaintiff’s assignor bound to be content with the defendant’s acceptance of a part only of the caps agreed by the latter to be accepted by him. It was the defendant’s duty either to retain all, or to reject all, in the absence of an agreement permitting him to do otherwise. Having accepted the caps in part the defendant must be deemed to have accepted them all.”
Professor Williston in a note to section 493 of his notable work on Sales expresses the same idea in the following words: “If the buyer can accept some and [306]*306reject others, the seller must equally be at liberty to make a valid tender of some and not others.”
The learned judge below based his determination in favor of defendant’s contention on section 156 of the Personal Property Law, which reads: “ Definitions: 1. In this article, unless the context or subject matter otherwise requires: ‘ Divisible contract to sell or sale ’ means a contract to sell or a sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation. ’ ’
As appellant points out, however, the phrase “ divisible contract to sell or sale ” appears nowhere else in the Personal Property Law, except in sections 88 and 89, referring to “ Destruction of goods sold ” and “ Contracted to be sold,” respectively, which plainly have no bearing on the instant question. Under these circumstances, I do not think that it was intended by this mere unrelated “ definition ” to change the state of the law existing at the time of the enactment.
Moreover, the entirety of a contract and of the respective obligations of the parties thereunder is not affected by the fact that in one sense it may be regarded as “ divisible.” This distinction is noted in Barrie v. Earle, 143 Mass. 1, 4, where the court, quoting from prior decisions, holds that a contract may be “ one and entire in its origin ” yet “ divisible in its operation.” Such a contract might well be defined as divisible, and yet the respective obligations of the parties remain single and entire. To the same effect, see Norrington v. Wright, 115 U. S. 188, 203.
It remains, however, to consider the effect of section 125 of the Personal Property Law, to which no' reference was made below. That section reads:
“ Sec. 125. Delivery of wrong quantity * * * * * [307]*307(3) Where the seller delivers to the buyer the goods ho contracted to sell mixed with goods • of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.”
It is evident to me that section 125, as its title indicates, was intended to cover only cases where the wrong quantity of goods may have been delivered. The 1st subdivision provides for the case of “ a quantity of goods less than he (the seller) contracted to sell;” the 2d subdivision relates to the delivery of “ a quantity of goods larger than he contracted to sell;” the 3d subdivision covers the case of a delivery of the goods contracted for mixed with goods of a different description.
It is possible to interpret the 3d subdivision to include the instant case by reading the word “ doseription ’ ’ in its technical significance as indicating quality rather than kind, in which sense it has ordinarily been employed only in apposition to express warranty. I do not think, however, that the framers of the act intended it to be so understood.
Williston, in section 402, discusses this particular subdivision of section 125 and speaks of the case covered thereby as one “ When the buyer’s offer is of goods which the contract or order called for, mingled with other goods of a different hind.” That the inferences to be drawn from such a situation are entirely different from those arising out of the ease where some of the goods offered for delivery are merely defective in quality is quite apparent from his discussion under sections 459-461. It is significant that he discusses “Acceptance of part of the goods ” under section 493, which is part of his comment upon section 129 of the act entitled “ What constitutes acceptance” and not under section 125 relating to [308]*308delivery of a wrong quantity. 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.” If a man contracts to deliver 100 watches and instead delivers 75 watches or 125 watches, the case would seem to fall naturally within the terms of the title of section 125 and of subdivisions 1 and 2 respectively. If again he delivered part or all of the 100 watches together with 25 clocks it would be manifestly the delivery of a “ wrong quantity ” for only 100 articles had been contracted for and it would fit the phraseology of subdivision 3 as being a delivery of the goods contracted for “ mixed ” with goods of a different description. But can it reasonably be said that if he delivers 100 watches, some of which are defective in [309]*309workmanship, he is delivering a “ wrong qucmtity ” or “ goods contracted for ‘ mixed ’ with goods of a different description! ” In my opinion it would be doing violence to the title of the section, to the language of subdivision 3 and to the intent of the legislature to hold that the instant ease was covered by the provision quoted.
Having in mind that the Sales Act is predominantly a codification of the law existing at the time, and that 1 ‘ repeals by implication are not favored, and especially is that true of implied repeals of the common law ” (Matter of Carnegie Trust Co., 151 App. Div. 606, 611, 612, citing cases; affd., 206 N. Y. 390), I am convinced that we may not properly regard the established rule of the common law first hereinabove referred to as affected by section 125 of the Sales Act.
Judgment reversed, with thirty dollars costs, and judgment directed for the plaintiff in the court below with appropriate costs in that court and the costs of this appeal.