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    BUILDERS SUPPLY AND FUEL CO. v. HUNTINGTON & FINK CO.
    Ohio Court of Appeals Cuyahoga County
    No. 4176.
    Feb. 5, 1923
    This opinion has not been published except in Abstract
    CONTRACT — (1) Renunciation by express declaration — (.2) Renunciation dependent upon action of parties — (3) Breach of.
    Error to Cuyahoga Court of Common Pleas
   VICKERY, J.:

Epitomized Opinion

The H. & F. Co. agreed to furnish a certain quantity of laths to the Supply Co. and did furnish several carloards but on Nov. 10, 1919 the H. & F. Co. notified the Supply Co. that by reason of a five in the mill the former company would be unable to furnish any more laths until the following year. The Supply Co. did not at the time treat this letter as an announcement of a breach but urged compliance with the contract. The Supply Co. failed to pay for three carloads of laths which had been delivered according to the terms of the contract and the H. & F. Co. brought suit for the amount due. By way of counter claim the Supply Co. alleged a breach of the contract by the H. & P. Co. by a renunciation in the letter of Nov. 10 and claimed to be retaining the amount sued for as anticipatory damages although no* facts showing damage alleged or proved. The lower court found for the H. & P. Co. Held by the Court of Appeals in affirming the judgment:

Attorneys — Mooney, Hahn, Loeser & Keough, for the Supply Co.; Howell, Roberts & Duncan, for the H. & F. Co._

1. A renunciation to be treated as a breach by the 'opposite party must be clear and unequivocable so that the party will be informed that he need not expect anything further upon the contract from the other side. The letter of Nov. 10 was not a renunciation.

2. To make a renunciation effective as a breach, the other party must treat it as a breach and act upon it. The Supply Co. did not treat the letter in question as a breach.

3. A failure by one party to a contract to pay for goods delivered according to the terms of the contract especially after a notice by the other party that the contract would be cancelled upon continued failure to pay, is a sufficient breach to preclude the first party from claiming breach by the other party on a subsequent different account.  