I think the contract was entire and not severable. It was an executory contract of sale for the entire crop of fruit. The purchaser had yet to gather and pay for the fruit and the seller had to care for it in the grove by cultivation. There was no governmental agency interference, nor were there any strikes, *Page 34 embargoes, quarantines or Act of God to prevent the buyer, who is the plaintiff, from the shipping of the fruit.

The title to the fruit was in the purchaser from the date of the contract. It was his duty to remove it when it became merchantable. As it became merchantable the seller was entitled to receive a certain price per box for it. The contract did not secure to the purchaser the right to allow any fruit to become overripe and spoil so as not to be merchantable merely because the contract placed a limit of time upon him within which he should remove it. The reason for the limitation of time is apparent. It secured payment to the seller for all merchantable fruit within a definite time limit, and the prevention of possible infection of his grove by overripe, decaying and falling fruit.

The purchaser could not under the terms of the contract escape payment for the cheaper fruit at the agreed price and get the benefit of obtaining the better grade of fruit at the contract price by simply allowing cheaper fruit to spoil after it became merchantable and thus transmit the loss incurred thereby to the seller while requiring him also to take the loss on the higher grade of fruit at the contract price. Therefore I think all the pleas were good, and the judgment should be reversed.