
    Winchell, appellant, v. Scott and others, respondent.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed June 7, 1886.)
    
    Contract—Breach of—Cancellation of—When court will not relieve from.
    Where a party seeks to be relieved from the cancellation of a contract, not for the purpose of obtaining that which the other contracted to sell him, but that he may bring an action for the breach of the revivified contract without being liable to perform any of the stipulations contained in it: Held, that under the circumstances of the case, the court will look only at the strict legal rights of the parties.
   Per Curiam.

The contract provides that Winchell shall pay for the ice that he purchased of the defendants “in weekly and full payments, after a proper delivery of the same,” and that if he should fail to fulfil his obligations, or wilfully neglect to comply with the same, then, at the option of the defendants, the agreement to sell and deliver ice to him should be null and void.

There is no dispute as to Winchell’s default; it is conceded that on tlie 10th day of March, 1869, he owed the defendants for all the ice that he had bought from them between October 16, 1868, and December 31st of that year. His debt exceeded $110.

On the 10th day of March, 1869, the defendants caused a demand to be made upon him, and as he did not pay at the very moment, they served him with a written notice that as he had failed to comply with his obligations, they availed themselves of their right to declare their contract with bim null and void.

The good faith of the defendants in giving that notice is open to question, for there is strong reason to suspect that they did not cancel the contract because Winchell was in their debt, but for very different reasons; the fact being that they had entered into engagements with the Washington Ice Company that looked to an increase in the price '.of ice, and to a combination among various wholesale dealers in that article. If Winchell stood in the attitude of a party seeking the restoration of his right to obtain ice, of wmch he had been unconditionally deprived by the wrongful rescission of the contract, we should be disposed to scrutinize with great care the conduct of the defendants, and to listen with indulgence to the excuses that he gives for his neglect to make payment weekly, as he agreed to do. But he does not seek to be relieved from the cancellation of the contract, in order that he may obtain the ice that the defendants contracted to sell to him. His object in asking that the cancellation of the contract be set aside, is that he may bring an action for the breach of the revivified contract without being hable to perform any of the stipulations contained in that instrument. He seeks to get the advantage, without bearing the burden, of the agreement. The contract expired by its own limitation on the 1st day of April, 1873. The defendants gave him notice of cancellation in March, 1869. He did not begin this action till January, 1875. Having waited till he had seen that for several years after the cancellation the price of ice greatly advanced, he attempts after the lapse of years to take advantage of the rise. Under such circumstances, the court will look only at the strict legal rights of the parties.

It is plain that the defendants had, by the provisions of the contract, a right to cancel it whenever the plaintiff was in default; it is not denied that the plaintiff was in default; there can be no doubt, therefore, that, as matter of law, the cancellation put an end to the rights of the plaintiff under the contract. The contract did not require the defendants to demand payment before rescinding. A demand was nevertheless made. It is true that a reasonable time to comply with the demand was not given, but of that the plaintiff does not complain. Though the indulgence in making payments that the defendants habitually extended to the plaintiff might, under some circumstances, act as an equitable bar to a sudden and miconscientious enforcement of the defendants’ right of cancellation, there is nothing in the facts of this case to invite the erection of such a bar.

The judgment should be affirmed, with costs.  