ience and can be returned only as herein provided. This contract contains all the conditions and agreements between the parties, and the purchaser hereby acknowledges a receipt of a duplicate hereof.

The reasons given by appellant for contending that this contract is divisible are as follows:

(1) It contains an itemized list of the articles ordered.

(2) This list describes each article by name and design, and gives the number, the price per dozen, and the price for the fraction of a dozen so ordered.

(3) The contract nowhere states the total price of the articles ordered. (4) Since each article is itemized, it can be told at a glance what the purchaser is paying for each.

(5) The warranty in the contract that "any article which is not exactly as represented may be returned to us and we will replace it with a new article without charge, regardless of the cost of the article," presupposes a collection of individual articles, each one separate and distinct from the other, rather than an indivisible mass of goods.

(6) The articles were purchased for the purpose of selling to the retail trade, and that it is a matter of common knowledge that silverware is more often purchased by the piece than by the entire set.

(7) That the articles enumerated were of several different and distinct designs, and hence did not constitute one entire set.

All of these facts stated by the appellant may be conceded, however, and yet leave the court still in doubt as to the nature of the contract. 6 R. C. L. 858.

These conditions do not override the clear intention of the parties, if such contention can be gathered from the whole subject-matter of the contract. 6 R. C. L. 859.

And we believe that there is in the contract in question a clear indication of what that intention was, and that it was that the contract should be entire.

An important part of the contract is the so-called sales guaranty. This provides that "we (the seller) guarantee that the purchaser will sell a quantity of silverware in one year, which at the retail price will equal at least one and one-half times the amount of this order. If sales

are less than this amount, we agree to take back at the purchase price the goods remaining on hand, at the expiration of this contract."

It is clear from this that the seller desired a showing in the showcases of the entire order. His guaranty was that the sales in one year would "at the retail price equal at least one and one-half times the amount of this order." It was provided that there should be no countermand "of this order." The order, in short, was treated as an entirety. There was no guaranty of sales if less than the goods contracted for were bought, nor if less than the goods contracted for were exhibited.

Added to this fact is the fact that the plaintiff, Officer Bevin, testified in his deposition that the goods were sold in specified lots.

Added to this is the fact that, when on the trial defendant moved for a directed verdict, the plaintiff objected on the ground that the parol evidence of the shortage varied the written contract.

We have carefully examined the cases cited by the appellant, but in none of them do we find a contract similar to the one at bar, and which itself evidences an intention that the contract shall be entire.

The contract being indivisible, it was necessary for the plaintiff to show a full performance on its part and a passing of the title before the rescission by the defendant or purchaser, and before it could maintain an action for the purchase price. 2 Mechem, Sales, §§ 811, 1139; Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366, 6 Sup. Ct. Rep. 12; Sunshine Cloak & Suit Co. v. Roquette Bros. 30 N. D. 143, L.R.A. 1916E, 932, 152 N. W. 359; Hart-Parr Co. v. Finley, 31 N. D. 130, L.R.A.1915E, 851, 153 N. W. 137.

The defendant testified that when the shipment was received by the vendee there was a shortage of articles to the amount of $15.72, or one twelfth of the entire contract price, and though there is some testimony that all of the order was shipped, there is no conclusive presumption that this was the fact, and the jury evidently found that it was not. Plaintiff, indeed, himself offered to remit the amount from the purchase price. Though it is undoubtedly the law that where the contract of purchase is silent as to the person or mode by which the goods are to be sent, a delivery by the vendor to a common carrier in the usual and ordinary course of business transfers the property to the vendee. Mechem, Sales, § 736. Yet, in the case of an indivisible contract the whole order must be so delivered, and there was certainly evidence to go to

the jury from which the jury might arrive at the conclusion that this had not been done, and the verdict of the jury can be sustained on this theory and on this theory alone.

We are not here called upon the pass upon the question of whether an action for damages could have been maintained for the breach of the contract on the part of the defendant. It is sufficient to say that the action before us is on the contract and for the contract price, and that there is evidence that that contract had been rescinded.

But was it reversible error for the court to charge the jury that "I instruct you that if you find from the evidence that the agent of the plaintiff did represent to the defendant that the prices of the goods specified in the order exhibit 'B' were the usual wholesale prices of such goods; that Mr. Green relied on that statement and would not have signed the order if such statement had not been made; that such statement was false and known to the plaintiff to be false when it was made, and that the prices of said goods stated in the order were not the usual wholesale prices of such goods, but were excessive and more than the usual wholesale prices of such goods, then, the written order, exhibit 'B,' would be voidable as to the defendant Green, and he would not be bound by it and might lawfully refuse to carry it out.

"And in such case, the plaintiff could not recover in this action, and your verdict should be for the defendant."

We think that the giving of this instruction was not error. It is undoubtedly the general rule that where an article is on the general market and the price of the article is publicly known, one cannot avoid a contract because of a representation to him that the price was less or the same as the market price. This rule is announced in order to avoid perjury and fraud and to lend stability to business transactions. It was never intended, however, to be a cover for fraud. In other words, fraud should always avoid contracts, unless reasons of public policy require the fraud to be tolerated. Here the purchaser was not a jeweler, but a druggist, and the purchase of silverware was not a usual transaction either with him or usual to his business. It is true that he probably had in his store some wholesale price lists, but we probably all have some such lists in our possession. He had the right to assume that the agent of the seller had first knowledge of the facts of which he spoke,

and we believe that he had the right to rely upon the truth of his statement. Liland v. Tweto, 19 N. D. 551, 556, 125 N. W. 1032.

But it is claimed that the contract contains the provision that "this contract contains all the conditions and agreement between the parties, and the purchaser hereby acknowledges a receipt of a duplicate hereof,” and that this provision prevents the defendant from setting up the defense of fraud. It is claimed, indeed, that no fraud is shown in regard to this particular clause, and that it is not claimed that the defendant signed it unwittingly or without having an opportunity to read it.

This argument would probably be persuasive if it was applied to the warranties and conditions of the contract. We are not, however, dealing with such warranties or conditions here. The defendant is not suing for a breach of warranty. He is simply claiming fraud in the inception of the contract, in other words, that he was induced to execute the contract and to execute it wholly because of the fraud in the statement. We therefore think that the defense is maintainable, and that the instruction was properly given. State v. Nicola, 169 Iowa, 171, 151 N. W. 70; Bishop, Contr. 2d ed. § 669.

The judgment of the District Court is affirmed.

GRACE, J., being disqualified, did not participate.

INDEX.

ACCEPTANCE.

Of insurance risk, see Insurance, 2, 3.

ACCOUNTS.

Stated account, see also Pleading, 6.

Instructions in action upon account stated, see Appeal and Error,

12.

ACCOUNT STATED. See Accounts.

ACTION OR SUIT.

As to parties, see Parties.

Action on insurance policy, see Insurance, 10.

ADJUSTMENT.

Of insurance loss, powers of agent as to, see Insurance, 1.

ADVANCEMENT.

Stipulation for advancement of cause on calendar, see Stipula-.
tion, 2.

ADVERTISEMENT.

For bids for public work, see Contracts, 5, 6.

AMENDMENT.

Of Constitution, see Constitutional Law, 1, 2.
Of pleading, see Pleading, 1.

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