
    Jacob P. Stocksdale, Resp’t, v. Walter G. Schuyler, Survivor, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    ■ Contract—Rescission.
    Plaintiff agreed to deliver to defendant’s firm a large amount of lumber, they to pay freight on each invoice and give note for the balance. Several invoices having been delivered, plaintiff demanded payment of the balance due thereon, but defendant refused to give a note for past deliveries. Held, that such refusal gave plaintiff a right to rescind the contract and demand payment for the goods delivered.
    
      Appeal from judgment in favor of plaintiff entered upon verdict directed by the court.
    Action to recover a balance due upon lumber sold and delivered to defendants.
    
      Brown, Dexter & Squires, for app’lt; Wm. P. Rhodes, for resp’t.
   Barnard, P. J.

The facts are not disputed in this case. The plaintiff agreed to deliver a large amount of lumber. The defendants were to pay the freight on each invoice and give a note upon three months’ credit for the balance. There were several invoices delivered and neither freight was paid nor note given. There were subsequent deliveries on account of the contract when the freight was paid by defendants, but no note given. Payments were made on account to the extent of $1,231.43. In March, 1887, the plaintiff demanded payment of the balance and refused to execute the contract further unless a settlement was made according to the terms of the contract The defendants declined to give a note for the balance on past deliveries and claim that the plaintiff must fulfill the entire contract and can only claim payment of freight and a note for further deliveries. Can the plaintiff rescind the contract for a failure to pay or give a note for past deliveries ? The case of Gardner v. Clark, 21 N. Y., 399, holds that a waiver of payments for past deliveries did not waive the right of payment as to future ones. It does not meet the present case. Assuming a waiver of the conditions and that the title passed, it was clearly the right of the plaintiff to demand the note and his right to that or the cash only depended upon a demand for a performance of the conditions.

The refusal to give the note was proven, and this refusal gave the plaintiff a right to rescind the contract and demand his money for the goods sold and delivered.

The performance of the contract by the plaintiff presupposed the giving of the several notes as invoices were delivered, and this fact brings the present case under Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y., 211; 1 N. Y. State Rep., 390; Graf v. Cunningham, 109 N. Y., 369; 15 N. Y. State Rep., 524; Withers v. Reynolds, 2 Barn. & Adol., 882.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs.  