#### Arlington P. Fulton, Respondent, *v.*Max Canno and Abe Canno, Trading under the Firm Name and Style of Canno’s Dairy, Appellants.

Third Department,

May 6, 1914.

Contract — action to recover contract price of milk — acceptance of milk by defendants after notice that they rescinded the contract.

In an action to recover the contract price of skim milk alleged to have been delivered by the plaintiff to-the defendants, it appeared that they had entered into a written agreement, whereby the plaintiff was to remove certain machinery and appliances and fix the floor of its creamery so that the defendants could install two tanks to receive the milk as it came from the separator. The plaintiff was to supply the milk at a stated price and the defendants were to furnish a cheese-maker. After the performance of the contract for about six months, the defendants wrote the plaintiff that they would go no further with it, They, however, left then tanks in position connected with the separator, and their cheesemaker remained at the factory in charge of them, and when the tanks became full opened them and allowed the milk to run into the whey vat. Plaintiff continued to perform his part of the contract. On all the evidence;

*Held,*that the defendants accepted the milk and that a judgment in favor of the plaintiff should be affirmed.

Smith, P. J., and Howard, J., dissented in part, with opinion.

Appeal by the defendants, Max Oanno and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 3d day of December, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office denying defendants’ motion for a new trial made upon the minutes.

*Arthur C. Kyle [Ellsworth Baker*of counsel], for the appellants.

*John D. Lyons,*for the respondent.

Kellogg, J.:

By written agreement of December, 1911, the defendants purchased all the pure skim milk from the plaintiff’s creamery for one year from December first at twenty-three cents per can of forty quarts, to be placed in the defendants’ cans at the creamery until April first following, after which date the defendants *204might elect to receive it in the same manner, or they could, instruct the plaintiff’s huttermaker how to make it into pot cheese at the creamery, without added expense to the plaintiff, the defendants furnishing the tanks and fixtures therefor, in which case the plaintiff was to receive twenty-five cents per can, and if the cheese was not satisfactory the loss should be the defendants.

Finding it difficult to remove the milk from the creamery to the place where they were to make the pot cheese, in January defendants obtained a modification of the contract, which the jury have found to he as follows: The plaintiff was to remove certain of his machinery and appliances and fix the floor of the creamery so that the defendants could install two tanks with a capacity of 600 gallons, each tank being .sixteen feet long and three and one-half feet wide. That defendants were to put in a cheesemaker of their own and receive the milk into the tanks as it came from the separator and, to cover the expenses in fixing the building, and for its use and for the trouble in having the cheese made there, the plaintiff was to receive twenty-five cents per can instead of twenty-three cents. From January until June twenty-first the contract was performed in that manner. Oole was the defendants’ butter-maker and representative at the factory. On the latter date the defendants wrote the plaintiff that they would go no further with the contract. They, however, left their tanks in position and connected with the separator and their cheese-maker remained at the factory in charge of them, and from day to day when the tanks became full he opened them and allowed the milk to run into the whey vat. The plaintiff was faithfully performing his contract and the defendants had no right to rescind it. Nevertheless the defendants had the right to refuse to go any farther with the contract and were liable to pay such damages as the plaintiff might sustain. The fact that the defendants had written the plaintiff that they would go no farther, and the fact that they still occupied the space in the creamery with their tanks connected with the separator, and that their agent remained in charge disposing of the milk from day to day, rendered the defendants’ position somewhat ambiguous, and it was a clear question of fact *205for .the jury to determine whether the defendants had breached their contract or were receiving milk under it. The case was submitted to the jury fully and fairly on that theory. In the charge the jury was directed to find for the defendants unless it determined that Cole was the defendants’ agent and that the defendants accepted the milk under the contract after June twenty-first. The case was not for damages for the breach of a contract, but proceeded solely upon the theory that the plaintiff had fully performed and that the defendants had accepted such performance. After notifying the plaintiff that they would break the contract defendants had the right to change then minds and observe it. They notified the plaintiff that he must not use the tanks, and by occupying the space in the factory they prevented him from using it. He was not obliged to remove their tanks, especially while their agent remained in charge of them. If the defendants unquivocally had refused to receive the milk, and had removed their tanks and agent from the factory, it is clear that the plaintiff could not discharge the milk upon the ground and recover the purchase price from the defendants. That would not be the legal measure of damages. Apparently the value of the milk was twenty-three cents per can. The plaintiff was to receive two cents per can for the expense incurred in putting the factory in shape for the defendants and for the privileges given them therein. The complaint alleges all the facts and, in any event, the plaintiff was entitled to recover two cents for each can of milk produced. But the evidence tended to show that the defendants accepted the milk, and the jury has so found. That was the only question in the case. No error of law whs committed. The defendants were acting unreasonably and unfairly in notifying the plaintiff they would not receive the milk. Their conduct is without reasonable excuse. The verdict is fairly sustained by the evidence. I, therefore, favor an affirmance.

All concurred, except Smith, P. J., writing for modification, in which Howard, J., concurred.

Smith, P. J.

(for modification):

This action was brought to recover the contract price of skim milk alleged to have been delivered to appellants from *206June 16 to August 16, 1912. The respondent operated a creamery at Ferndale, N. Y., and had contracted with appellants to furnish them with skim milk for cheesemaking for one year at a certain price, The cheese was manufactured in respondent’s creamery, hut in vats and with fixtures owned by appellants. On June 21, 1912, the appellants sent to 'respondent from Brooklyn two registered letters stating that they would not accept any further deliveries under the contract. These letters were presumably rescinded June twenty-second. The respondent continued, however, to deliver the skim milk to the cheesemaker Cole; the same was put in the appellants’ vats, but no cheese was made therefrom and the milk was afterwards wasted and lost. This continued to August 15, 1912.' In this action plaintiff has recovered the value of the skim milk thus claimed to have been delivered from June sixteenth to August fifteenth at the contract price. The judgment also includes certain items amounting to fourteen dollars and twenty-eight cents, which do not seem to have been disputed.

After the rescission of the contract by appellants the respondent was not authorized to continue to deliver this milk. It is contended in his behalf that Cole, the cheese-maker, was in the employ of the defendants, and a delivery to Cole was a delivery to defendants. Whether or not Cole was in the employ of the defendants at that time is immaterial, as the rescission of the contract clearly operated as a revocation of his authority to receive the milk for the defendants. Plaintiff’s duty upon the rescission was to use reasonable means under the circumstances to reduce the loss. *“*He cannot stand idly by and permit the loss to increase, and then hold the wrong-doer liable for the loss which he might have prevented.” (13 Cyc. *71.*See, also, *Shannon*v. *Comstock,*21 Wend. *457,*461, 462; *Schleicher*v. *City of Mount Vernon, 107*App. Div. 584, 586; *Carter Co.*v. *Fischer,*121 N.Y. Supp. 614.) It appears in the evidence that soon after this rescission plaintiff had an offer from third parties to purchase this skim milk, which he declined to accept. No question is suggested as to the responsibility of the parties offering to purchase or as to the good faith of the offer, and the price is not named. It was clearly *207the duty of the plaintiff after this rescission to have availed himself of this offer and to have reduced his damages thereby, and for failure to do so he has forfeited his right to recover for such damage, or at least for such amount as he might have obtained by the acceptance of such offer. If plaintiff had been diligent to protect himself he might have been fully recouped after the offer by the. sale of this milk to these third parties.

For the skim milk delivered between June sixteenth and June twenty-second, however, the plaintiff is clearly entitled to recover. From the course of dealings it may be fairly assumed that the daily deliveries averaged about the same for this month. The value of the milk at the contract price from June sixteenth to July first amounted to the Sum of one hundred and twenty-three dollars and thirty-six cents. Assuming the. average daily delivery to be the same, the contract price of the milk delivered from June sixteenth to June twenty-second would amount to forty-nine dollars and fifty cents; adding to this the fourteen dollars and twenty-eight cents admitted to be due for other items, makes the sum of sixty-three dollars and seventy-eight cents, the amount which the plaintiff is clearly entitled to recover in this action.

Howard, J., concurred.

Judgment and order affirmed, with costs.