
    STURGES & BURN MFG. CO. v. AMERICAN SEPARATOR CO.
    (Supreme Court, Appellate Division, Thiid Department.
    May 3, 1911.)
    Sales (§ 175)—Rescission by Buyer—Revocation.
    Where the seller of goods, though notified by the purchaser that he will not accept further deliveries under the contract, yet tenders such deliveries, which are accepted and paid for, but does not succeed in delivering the full contract amount, he cannot claim that he was prevented by the purchaser’s rescission from completing the contract; the acceptance of part of the goods after notice of rescission being a revocation thereof.
    [Ed. Note.—Eor other cases, see Sales, Dec. Dig. § 175.]
    Houghton, J., dissenting.
    - Appeal from Special Term, Chenango County.
    Action by the Sturges & Burn Manufacturing Company against the American Separator Company. Judgment for plaintiff. Defendant appeals.
    Reversed, and new trial granted.
    Argued before SMITH, P. J., and KELLOGG, SEWELL, BETTS, and HOUGHTON, JJ.
    
      Julien Scott, for appellant.
    T. B. Merchant, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SEWELL, J.

This action was brought to recover damages for the breach of a contract. On January 13, 1906, the plaintiff entered into an agreement with the defendant to manufacture and deliver 1,500 of No. 1 separator covers, and 1,500 of No. 2 covers. On February 6, 1906, the plaintiff entered into another agreement with the defendant to manufacture and deliver 500 of No. 1 covers, and March 22, 1906, the plaintiff and defendant made another contract, whereby the plaintiff was to manufacture and deliver 1,000 of the No. 1, and 1,000 of the No. 2 covers. Part of these covers were manufactured and delivered to the defendant prior to the 6th day of August, 1906, when the defendant, claiming that the plaintiff had failed to perform the contract on its part, rescinded the agreement and notified the plaintiff not to ship any more of the No. 2, and only 500 more of the No. 1, covers.

It appeared that the plaintiff did not acquiesce in the rescission, but continued in the performance of the contract, and thereafter made eight separate shipments, amounting in the aggregate to 1,632 covers, and that each shipment was accepted, retained, and paid for by the defendant. There was no proof to show that the defendant expressed any dissatisfaction with the subsequent deliveries, that it refused to accept or pay for the remainder of the covers, or that it again intimated in any way that it would not abide by the contract. The court found as a fact that by reason of the rescission of the contracts the plaintiff was unable to complete and deliver 1,062 covers, and as a matter of law that the defendant was liable in damages to the plaintiff for the unauthorized rescission.

We think this was error. Upon the rescission of the contract by the defendant, the plaintiff might have taken advantage of it and sued for damages, without any demand or offer of performance; but it was not obliged to do so. It was its right and privilege to tender performance, and as all the covers delivered or tendered were accepted and paid for by the defendant, according to the terms of the agreement, it is clear that the plaintiff cannot now insist that it was prevented from continuing and completing the contract, or that damages followed the breach. It is equally clear, taking all the facts and circumstances into consideration, that the rescission was not conclusive upon the defendant, that it had the right to revoke the rescission, and that the acceptance of the covers after the rescission was equivalent to a revocation of it, and an unequivocal notice of an election to abide by the contract.

We are, therefore, led to the conclusion that the judgment should be reversed,' and a new trial granted, with costs to the appellant to abide the event. All concur, except HOUGHTON, J., who dissents.  