
    *Robert Seeds v. Simpson & Knox.
    When one of the parties to a contract claims its rescission, on account of a default in the performance of its stipulations by the other, good faith requires that he should give notice of his claim or purpose to rescind, whenever his failure to do so would reasonably lead the defaulting party to incur trouble or expense in farther performance of the contract. If he willfully induce such further performance by his silence, when he ought to speak, or otherwise, he will be regarded as waiving such default, or as electing not to rescind for that cause; and will-not afterward be permitted, on account of a default thus waived, to exercise the rights incident to a rescission.
    
      Ekkor to the Superior Court of Franklin county.
    The original action was brought by Simpson & Knox, February 21, 1863, to recover of Seeds damages for wrongfully converting about five thousand bushels of their corn in the ear, to his own-use.
    Seeds denied the alleged conversion.
    The issue, tried to the court, was found for the plaintiffs, Simpson- & Knox, §nd the court assessed their damages at $1,503.75, the-difference between the value of the corn (sixty cents per bushel) at the time of the conversion, and the price (thirty-one cents peibushel) at which they purchased the corn of Seeds by contract hereinafter mentioned, less $50 paid on the contract at the time it was made.
    The defendant Seeds, moved for a new trial on the grounds that-(1) the decision of the court was not sustained by sufficient evidence, and (2) was contrary to law. The motion was overruled,, and judgment entered for the plaintiffs, and exception taken.
    The bill of exceptions shows the following facts, in substance :
    October 3, 1862, Knox & Fairly, and Seeds entered into a written contract by which Seeds sold to them five thousand bushels of' corn in the ear, at thirty-one cents per bushel, to be delivered between October 15 and .November 15, “ on board canal-boat or in Seeds’ cribs adjoining the Cottage Mills,” payment to be made on delivery. The contract stipulated that the purchasers of the corn-could have the use of the cribs, if they needed them, to keep it in, without charge, *for one year from the date <jf the contract. A payment of $50 was made on the corn at the date of the-contract.
    . Knox & Fairly were acting at the time—the one as the agent, of Knox & Son, and the other as the agent of John Simpson, and they all resided in Allegheny City, Pennsylvania. Shortly after the contract was made the parties interested in the purchase became partners in business under the firm name of Simpson & Knox, the plaintiffs, and the contract became partnership propei’ty, and the firm of Simpson & Knox, became the real parties in interest.
    In pursuance of the contract Seeds delivered the corn into the cribs, commencing October 15 and ending October 21.
    Simpson & Knox were not present at any time during the delivery of the corn, but before it commenced engaged one J. C. Garrett, a clerk of Hughes & West, proprietors of the Cottage-Mills, and with their consent, to weigh the corn and see that it was of merchantable quality, and reject such as was not.
    Seeds brought the corn in wagons to the scales at the mills, where it was weighed by Garrett, and then delivered by Seeds into the cribs mentioned in the contract, being about one hundred and twenty-five yards from the mills.
    On October 24th, the day the delivery of the corn was completed. 'Garrett, in the name of Hughes & West, at the request of Seeds, wrote to Knox & Fairly, directing the letter to Circleville, in Pick-•away county, that Seeds had delivered the corn, and wished them to send him a check for the balance due on it. They were requested to direct their letter to the care of Hughes & West, Shadeville, Franklin county.
    Knox, of the firm of Simpson & Knox, and their representative In the business, was engaged in the purchase of produce in other parts of the state, making Circleville his “ headquarters,” and did not receive the letter until his return to Circleville, and some time after its date.
    November 6th, Knox, in the name of Knox & Fairly, replied to -the letter, writing to Hughes & West, inclosing a check for $500, to be given to Seeds, and his receipt on account taken therefor, and stating that they did not suppose all the corn would be delivered until about November 15th, *and, therefore, they did not expect to pay the balance until about that time; and stating further, that if Seeds was not satisfied with receiving the balance at the time referred to, to inform them and they would remit the balance for him at once.
    Hughes & West received this letter and check on the 7th or 8th of November, and tendered the check to Seeds; but he declined to receive it, and expressed'himself as dissatisfied.
    Hughes & West returned the check to Knox & Fairly, in a letter of November 8th, and stated that Seeds “seems to be dissatisfied with the way the thing has been managed.”
    On the receipt of this letter Knox immediately started for the residence of Seeds, and met him there in the evening, on his return from Columbus, and tendered him the whole purchase money for the corn, but Seeds refused to receive it, and told him that he did not intend to let him have the corn; that he had taken counsel that day at Columbus, and had sent him a letter that day notifying him that he should rescind the contract.
    
      Knox did not receive this letter until two days afterward. It is dated at Columbus, Ohio, November 10, 1862, addressed to Knox & Fairly, and is signed by Seeds, and states that he finished delivering the corn in his cribs on October 24th, according to contract, of which he notified them, and that they had failed to pay for it according to the contract, and that they were thereby notified that he should treat such failure as a termination and rescission of the contract.
    Seeds also offered to return the fifty dollars he had received on the contract, but Knox declined to receive it, and notified him for Simpson & Knox, that they should hold the corn on the contract.
    Simpson & Knox gave evidence that Seeds had on or about February 9, 1863, taken the corn from the cribs and sold it as his own, although they had forbidden him so to do, and that the market price of corn then was from fifty-five to sixty-two or three cents-per bushel.
    Seeds gave testimony that the cribs mentioned in the contract were his cribs, built on his ground, near Hughes & "West’s mills f that Hughes & West did not consider that they were acting as the agents of the purchasers of the corn *in weighing it, but kept the weights for the benefit of both parties; that Seeds closed the cribs after the delivery of the corn in them, and was at the mills every day or two from the time of delivering the corn into-the cribs until after November 10th; that after the letter of October 24th, was written at the request of Seeds, he called daily at the-mills to receive his money, until he became ashamed to do so; that there was a slight advance in the corn between the date of delivery and the 10th of November, which advance continued to increase until after February 19, 1863.
    This was all the evidence in the case.
    To reverse the judgment of the superior court, Seeds, the defendant below, filed his petition in error in this court.
    
      Henry G. Noble, for plaintiff in error, argued :
    The court erred in overruling the motion for a new trial, because the facts show that the plaintiffs had no right of action against the defendant.
    1. There was no delivery of the corn to the purchasers. Although “ delivered in the cribs,” the corn was never, technically, delivered to the plaintiffs, because they failed to pay for it on delivery in the cribs, and thereby failed'to become the owners of the corn, andr therefore, obtained no right to the cribs, such right depending upon their becoming the owners of the corn by paying for it when delivered in the cribs. So the purchasers never had possession of the' corn, and, therefore, were not deprived of its possession, and the-action, being in the nature of trespass, must fail. Boulter v. Arnott,. 1 Crompt. & Mees. 333; Goodall v. Skelton, 2 H. Bla. 316.
    2. If there was a delivery of the corn it was not absolute, but conditional upon its being paid for, and the condition was not performed. Leren v. Smith, 1 Denio, 571; Haggerty v. Palmer, 6 Johns. Ch. 437; Smith v. Dennie, 6 Pick. 266; Whitwell v. Vincent, 4 Pick. 449; Morris v. Rexford, 18 N. Y. 552; Fletcher v. Cole, 23 Vt. 114; Russell v. Minor, 22 Wend. 659; Smith v. Lynes, 1 Seld. 41; 25 Barb. 474, 482, 483.
    3. If the--delivery was made and was conditional, the condition was not waived by the vendor. Furniss v. Hone, 8 *Wend. 247-256; Hilliard on Contr. (1 ed.) 97; Smith v. Dennie, 6 Pick. 266; 2 Kent 491; Loeshmann v. Williams, 4 Camp. 481.
    4. The vendor may reclaim his goods if delivered on condition, and the condition be not complied with. Seedom v. Phillips, 1 Yeates, 529; Palmer v. Hand, 13 Johns. 434; Russell v. Minor, 22 Wend. 659; Lerew v. Smith, 1 Denio, 571; Corlies v. Gardner, 2 Hall (N. Y.), 345; 2 Kent, 498; 1 Selden, 41.
    
      A. G-. Thurman, also for plaintiff in error, argued:
    1. Putting the corn into the cribs did not pass the title to the vendees, whether the cribs are to be considered the cribs of the vendees or of the vendor. The delivery was not complete, and was not intended to be, until the corn was paid for. The title does not, in such case, pass until payment or waiver of payment.
    2. The possession of the cribs remained in Seeds. The vendee had no right, under the contract, to the use of the cribs until they became the owners of the corn.
    The contract does not demise the cribs. It does not even stipulate that the vendees shall have the possession of them. It merely stipulates for a contingent use of them—a mere storage privilege.
    3. The vendees utterly failed, for weeks, to even offer payment for the corn. The judgment in their favor against a vendor who was in no default, is not only erroneous but oppressive. The fact that the vendees were not at Circleville (their headquarters) to get the letter notifying them that the corn was in the cribs, until near two weeks after it was sent to them, was their own fault. It was not for Seeds to wait until it should be convenient for them to return to their place of business and get their letters. Their absense is no legal excuse for their failure to pay.
    
      G. JSF. Olds, for defendants in, error, argued:
    1. The delivery of the corn into the cribs was a complete and absolute delivery under the contract, and the property in the corn thereby passed to and vested in the defendants.
    2. If delivery and payment were, by the contract, to be contemporaneous acts, the plaintiff in error waived instant payment, and consented to payment within a reasonable time.
    3. Beasonable time is to be determined by the circumstances of each particular case.
    4. Under the circumstances of this particular case, tender of payment was made with reasonable promptness, so as to comply with the terms of the contract.
    5. If tender of payment was not made with reasonable promptness, still the sale and delivery were complete and absolute, and the plaintiff in error was bound to rely upon his contract to recover the purchase money. He had lost his right to reclaim the property.
    6. For a delivery to be conditional, payment must be required at the time delivery is made, and no postponement allowed; and, further, payment must be refused before the right to reclaim the property will arise.
    I refer to the following authorities: 13 E. C. L. 199 ; 11 Johns. 283; 13 East, 522; 6 Wend. 77; 6 Cowen, 110; 5 Tenn. 231; 2 Kent’s Com. 496; Henderson v. Lauck, 21 Penn. St. 359; 29 Penn. St. 356 ; 31 Penn. St. 324; Bowen v. Burke, 1 Harris, 149; Ives v. Humphries, 1 E. D. Smith, 196 ; Russell v. Miner, 22 Wend. 664 ; Palmer v. Hand, 13 Johns. 434.
   Scott, O. J.

The question in this case is, whether the corn which Seeds sold, and the proceeds of which he appropriated to his own use, was his own property at the time of such sale, or whether it rightfully belonged to the plaintiffs below. If it was his own, there was no wrongful conversion in the case; but if it belonged to Simpson & Knox, the court below properly found the issue joined dy the pleadings in their favor.

Seeds, the plaintiff in error, claims that the corn was placed by 'him in his own cribs, on his own premises, and so never became the property of the plaintiffs below by an actual delivery; whilst they ¡claim that the placing of the corn, pursuant to the terms of the agreement of sale, in the cribs to the use of which they were entitled for a year, and the notice given them thereof, rendered the •delivery of the corn to them complete and absolute.

By the contract of the parties the corn was to be paid for on delivery. The performance of'this stipulation Seeds had *a right to insist upon, and we think the delivery shown in this ease, .and the notice given of it, accompanied as it was with a request for payment, was not a waiver'of such right. We do not doubt that by this delivery the plaintiffs below acquired a possession of and a qualified property in the corn; which it was in their power to ren■der absolute and unconditional by prompt payment, or tender of the purchase money remaining unpaid. But the delivery was, at the ■same time, on the implied condition of such payment, and if this were refused by the plaintiffs below, Seeds might rightfully resume ■his possession and treat the contract as rescinded.

The principal question in the case is, whether, under the circumstances shown by the evidence, the plaintiff in error was authorized, by the default of the other party, to regard the contract as rescinded, and resume possession of the corn when he assumed to do •so. It might well be questioned whether the defendants in error were guilty of any such palpable violation of the stipulations of their contract, of any such refusal or unreasonable delay of payment, as would constitute a ground of rescission.

But if it be conceded that they were clearly in default, that it was their duty, on receiving notice of the delivery of the corn, to have promptly remitted the whole of the purchase money remaining unpaid, and that Seeds'was under no obligation to wait for any part of it till they could be informed of his unwillingness to give time, and that he might therefore elect to treat the contract as rescinded ; yet he made no such election when he refused to accept the $500 check; at least, he gave no notice of a rescission, or of a purpose to rescind, either by word or act. He simply refused to accept partial payment, and “expressed himself as dissatisfied.” He made no offer to return the money paid on the contract, and neither said nor did anything to relieve the plaintiffs below from the obligations of further performance, or from the risk of loss incident to the ownership of the property purchased.

He thus kept it in his own power to regard the contract as still open and subsisting. He thus subjected the other party to the inconvenience and trouble of procuring the necessary funds, and of coming promptly from Circleville to the residence *of Seeds, in this county, to make payment. This trouble he must have expected they would take, unless they were informed of his purpose to regard the contract as no longer subsisting; for he had been expressly informed that they would make immediate payment if he was dissatisfied with their proposition.

It is a sound principle that he who does not speak, when good faith requires that he should, will not afterward be permitted to speak to the prejudice of another who has relied and acted upon his. silence. And we think the plaintiff in error, by permitting the defendants to incur trouble and expense in proceeding with the performance of the agreement upon their part, after the alleged ground of rescission had occurred, and was well known to him, must be regarded as electing not to rescind for that cause, but to give the defendants in error reasonable time for further and full performance.

They are certainly chargeable with no subsequent default; and by their prompt tender of full payment for the property bought, they fully terminated whatever contingent right the plaintiff in error may have had to resume the possession of it.

The judgment of the court below will be affirmed.

Hay, Welch, and Brinkerhoee, JJ., concurred.

White J., dissented.  