
    THOMAS SHERMAN, Respondent, v. WILLIAM H. HOLMES, et al., Appellants.
    
      Contract for delivery of goods and payment by installments—payment for each installment condition precedent to next delivery—-what constitutes rescission by vendee—what necessary to cause of action for non-, delivery.
    
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided April 3, 1882.
    Appeal by defendants from judgment entered upon the verdict of a jury rendered pursuant to the direction of the court.
    
      By the contract between the parties for the sale and purchase of lumber and timber, delivery was to be made in cargo lots, and upon arrival each cargo was to be settled for when discharged, the buyers to pay the freight in cash and the price in orders on the Dock Department, and each, side to pay one-half of the cost of the measurement and inspection. The cargo of the schooner “ M. A. Folsom ” was delivered to the defendants and accepted by them as the first cargo. The defendants did not settle or tender orders on the Dock Department therefor, as they had agreed to do, but insisted that the plaintiff should first make further deliveries. This the plaintiff declined to do.
    
      D. M. Porter and Charles D. Evans, for appellants.
    
      John L. Logan, for respondent.
   The court at General Term, held: “The true contract was as above stated, and in its nature it was severable as to each and every cargo. Upon the arrival and discharge of a cargo the defendants were bound to settle for it according to contract as a condition precedent to the next delivery. This they failed to do upon receipt of the first cargo. Moreover, while thus in default, they notified the plaintiff not to make any more deliveries. This constituted a rescission of the contract on their part. Under these circumstances the plaintiff had a right to recover for part performance made up to that time, and the defendants could no longer sue in affirmance of the contract. A party cannot be permitted to rescind and affirm at the same time, or to rescind in part and affirm in part. He must make his election. To be in a position to urge their counterclaims, the defendants should have refrained from rescinding, and should have offered to perform the contract on their part.”

Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.  