
    Sturges & Burn Manufacturing Company, Respondent, v. American Separator Company, Appellant.
    Third Department,
    May 3, 1911.
    Sale—rescission of contract by purchaser — acceptance of further deliveries — revocation of rescission.
    Although a purchaser rescinded a contract for the manufacture and sale of goods after partial delivery, the rescission is revoked where the seller continued to make deliveries which were accepted and paid for by the purchaser. Hence, the seller who has failed to make all the deliveries called for by the contract cannot hold the purchaser liable as for a' breach of contract.
    Houghton, J., dissented.
    Appeal by the defendant, the American Separator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 9 th day of August, 1910, upon the decision of the court rendered after a trial at the Chenango Trial Term, a jury having been waived.
    
      Julien Scott [Hubert C. Stratton], for the appellant.
    
      T. B. & L. M. Merchant, for the respondent
   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6th'day of August, 1906, when the defendant claiming that the plaintiff had failed to perform the contract on its part rescinded the agreement and notified the plaintiff not to ship any more of the No. 2, and only 500 more of the No. 1 covers.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, hut 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 conclusion 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 concurred, except Houghton, J., dissenting.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.  