#### Wilber *et al. v.*Leonard.

*(Supreme Court, General Term, Fourth Department.*

May 2, 1890.)

Bale—Rescission.

Plaintiffs agreed to buy, and defendant agreed to sell, a quantity of bops at a certain price, the hops to be delivered at any time the plaintiffs might designate, and defendant to have the benefit of any rise up to June 20, 1886. On June 18th, plaintiffs wrote to defendant that they had examined the hops, and found them in an unsatisfactory condition, that they thought some of the hops would spoil, and that they did not see how they could “ accept of them under the circumstances. ” Subsequently plaintiffs described how they thought the hops might be saved, and said that they did not compare with the sample by which they were purchased, and that they were “very dirty picked. ” There was evidence that, after the receipt of such letter, defendant had an interview with plaintiffs, in which the latter offered some*351thing to he released from the contract, and defendant declined the offer, and sought and obtained the opportunity, of which he availed himself, to put the hops in a more satisfactory condition. *Meld,*that it could not be said, as a matter of law, that such letter constituted a rescission of the contract so as to absolve defendant from its terms.

Appeal from circuit court, Otsego county.

Action by David Wilber and D. Forest Wilber against Jacob Leonard. In their complaint the plaintiffs allege that on the 28th day of May, 1886, the defendant agreed to and did “sell and deliver to the plaintiffs at the depot inMaryland, 2T. Y., all the hops then in the hop-house of the defendant in the town of Maryland, FT. Y., being about forty-three bales, or 7,925 lbs., of hops; said hops to be delivered at the depot in Maryland, FT. Y., at any ti.me that might be designated by the plaintiffs, and that the plaintiffs should pay to the defendant therefor at the rate of eight and one-fourth cents per pound, and give the defendant the benefit of any rise up to June 20, 1886, payable as follows: Ten dollars at the time of making said agreement, and the residue on the delivery of said hops as aforesaid.” Also: “It was expressly agreed by the defendant that the said hops so sqld to the plaintiffs as aforesaid should correspond in all respects and were the same as a sample then exhibited by defendant to the plaintiffs, and that said hops would be delivered by defendant the same in all respects as the aforesaid sample. That the plaintiffs thereupon paid to the defendant the sum of ten dollars in pursuance of the aforesaid agreement. ” Plaintiffs further allege that they “duly notified the defendant to rebale and deliver said hops at the depot in Maryland, on the 22d day of July, 1886, at which time and place the plaintiffs would be ready to receive the same, and pay the balance of the purchase price thereof. That on the 22d day of July, 1886, at the depot in Maryland, FT. Y., the plaintiffs were ready and duly offered to the defendant to receive and pay for said hops pursuant to the aforesaid agreement, and requested the defendant to deliver the same, and otherwise have duly performed all the conditions of the said agreement on their part. That the defendant refused and neglected to deliver said hops, to the damage of these plaintiffs.” In defendant’s answer he admits the partnership of the plaintiffs, and alleges that on the 28th of May, 1886, “the defendant agreed to sell to the plaintiffs, and the plaintiffs agreed to purchase from the defendant, the hops mentioned in the complaint, ” substantially as stated in the plaintiffs’ complaint, and also alleges the payment of the $10 earnest money on said agreement, and also alleges “that prior to June 20,' 1886, plaintiff's notified defendant that they would not accept or receive said hops, or any.of them, and plaintiffs refused to accept or receive said hops or pay for them under said agreement.” Judgment was entered for plaintiffs on a verdict for $1,626.92, and a motion for new trial was overruled, and defendant appeals.

Argued before Hardin, P. J„ and Martin and Merwin, JJ.

*E. M, Harris,*for appellant. *Burr Mattice,*for respondent.

Hardin, P. J.

From the pleadings and the evidence given at the trial it is conclusively established that on the 28th of May, 1886, there was a valid contract made and entered into between the plaintiffs and the defendant for the hops mentioned in the complaint. FTotwithstanding the statute of frauds, that contract was valid and binding between the parties. *Jackson*v. *Tupper,*101 N. Y. 515, 5 N. E. Rep. 65. It is contended by the appellant that, “before the time for the deliveryof the hops, the plaintiffs, by the letter of June 18th, rescinded the contract. Flo contract of sale and purchase remained, and the defendant had the right to treat the contract as rescinded.” This position was taken in various modes at the trial, and' was raised upon the motions for a nonsuit, and by a request to the court to charge. The hops when sold were represented to be in accordance with the sample delivered to the plaintiffs, taken by them to their place of business, and filed and pre*352served. Prior to the 18th of June the plaintiffs had derived some information or knowledge in respect to the hops in their then condition, and thereupon they addressed a letter bearing date June 18, 1886, to the defendant, which was in the following language, viz: “We have examined your hops carefully, and find them very uneven. They are also slack, and some of them the flavor has already changed, and we are sure some of them will spoil when the trying weather comes. We do not see how we can accept of them under the circumstances. We think you can save them by opening them and spreading them upon a dry floor. The hops do not compare with the sample they were bought by, except a few bales; they are very dirty picked, too. ” It is contended in behalf of the appellant that the words, “ we do not see how we can accept of them under the circumstances, ” amount to a refusal on the part of the plaintiffs to accept the hops, or an intention to rescind the contract, or to refuse to perform the same, or an abandonment of the contract. In considering these questions, the whole language of the letter must be borne in mind; and in examining the letter we find that it states that the plaintiffs have examined the hops, and “find them very uneven; they are also slack, and some of them the flavor is already changed;” and then they proceed- to state in the letter, as a matter of opinion, that they are “sure some of them will spoil when the trying weather comes;” and then make use in the letter of the words, “we do not see how we can accept of them under the circumstances. ” A careful inspection of those words indicate that the language used does not convey absolutely a refusal to accept the hops. The plaintiffs were not called upon to accept them on the day of the date of the letter. The time had not expired mentioned in the'purchase contract for the defendant to have the benefit of the rise in the hops; nor had the plaintiffs given any notice to the defendant of the time when they desired a delivery to be made. They were not, therefore, called upon to make a definite election of an intention to receive or to reject under the contract. They were in a situation where they might kindly and cautiously express an opinion that in the then situation of the hops they would not answer the terms of the contract, inasmuch as they would not correspond with the sample exhibited at the time of the sale. That idea seems to be derivable from the words, “ we do not see how we can accept of them under the circumstances.” The circumstances referred to in that phrase of the letter evidently related to the supposed condition of the hops mentioned in the antecedent portion of the letter.

This construction is favored by the subsequent words found in the letter, to-wit: “We think you can save them by opening them and spreading them upon a dry floor.” These last words are quite inconsistent with the supposition that the antecedent words were used for the purpose of putting an end to the contract. Before the letter closed the plaintiffs pointed out another circumstance in respect to the hops in the following words: “They are very dirty picked, too.” When the defendant received this letter, he sought an interview with the plaintiffs, which took place at their place of business in Milford, and, if the testimony which was given in behalf of the plaintiffs' correctly narrates that interview, it justifies the inference that the defendant construed the letter as one calling his attention to the circumstances in which the hops were found by the plaintiff, and that he did not regard the letter as an absolute refusal to accept the hops, or as a rescission of the contract, or as an abandonment thereof by the plaintiffs. According to the testimony given in behalf of the plaintiffs, after a considerablé discussion, in which one of the plaintiffs offered 1 per cent, to be released from the contract, the defendant declined such offer, and sought the opportunity to put the hops in a situation to answer the requirements of the contract. After a considerable conversation and negotiation, the parties evidently acted upon the assumption that the contract had not been rescinded; had not been abandoned; and that the defendant had still further time and opportunity to put the hops in a proper *353condition, so that they would answer the requirements of the contract which had been entered into with the plaintiffs in respect to them. He made his selection of one of the skilled and experienced hands of the plaintiffs, and fully completed an arrangement to have him assist in putting the hops in proper condition. In accordance with that arrangement, the selected hand went to the defendant’s building, where the hops were kept, and bales were opened, and the hops were treated and dried, and put in a more satisfactory condition. Taking the whole language of the letter, and giving due weight to all the circumstances mentioned therein, and the situation of the parties in respect to the subject-matter of the contract, and their practical construction of the tenor of the letter, we are of the opinion that the trial judge properly refused to hold as a matter of law that the plaintiffs had rescinded the contract, or committed a breach thereof, or that the defendant was absolved from the terms thereof. As already observed, the time for the performance of the contract had not matured at the date of the letter.

In Parsons on Contracts, (volume 2, p. 188,) it is said: “If one, bound to perform a future act, before the time for doing it declares his intention not to do it, this is no breach of his contract; but, if his declaration be not withdrawn when the time comes for the act to be done, it constitutes a sufficient excuse for the default of the other party. ” This doctrine was quoted approvingly by Mullen, J., in *Crist*v. *Armour,*34 Barb. 387. The appellant calls our attention to *Skinner*v. *Tinker,*Id. 334. In that case the defendant wrote a letter, in its terms clear and decisive, “declining to carryout the agreement on his part.” We do not see that the case aids the appellant. Our attention is called to *Cornwell*v. *Haight,*21 N. Y. 462. In that case there had been an absolute refusal to deliver the grain, which refusal worked a breach of the contract; and in the opinion it is said: “It is quite clear that the defendant had previously made up his mind not to comply with the contract.” We have found nothing in the letter or in the conduct of the plaintiffs which warrants us in using a similar observation in this case. In *Crary*v. *Smith,*2 N. Y. 60, “the defendant caused to be served on the complainant a written notice that he should no longer occupy the premises, and should refuse to fulfill the contract,” and that was held sufficient to supersede the necessity of a tender of a deed in order to sustain a bill for specific performance. We think the case furnishes no aid to the appellant. *Morange*v. *Morris,*32 How. Pr. 178, was a case where a somewhat similar question arose in a court of equity, and in illustrating the rule Smith, J., said: “A tender of performance need not be made when it would be wholly nugatory. For example, if the vendor in the present case had expressly notified the plaintiff before the 21st of September that he would not convey, and therefore the plaintiff need not tender the payment which the agreement required to be made on that day, he would have been excused from making the tender, as it would have been an idle ceremony.”

In *Graves*v. *White,*87 N. Y. 463, it was held that a positive and absolute refusal by one of the parties to perform a contract for a purchase and sale of land gives to the other party, as an alternative remedy, the right to assent to such abandonment, and to treat the contract as rescinded. When that case was before this court we held that the defendant- practically abandoned the contract, and so lost all claim to enforce its specific performance in equity, or to rely upon it as a defense to his possession; and the court of appeals approved of the doctrine, and said of the rule: “It rests upon a foundation common to all contracts, that two persons who are competent to make a contract are competent to waive or abandon it, and where both concur in such waiver or abandonment their united assent dissolves the contract, and the rights of each under it are ended. This was long ago held as to contracts respecting personal property. * * * A positive and absolute refusal, a deliberate repudiation of the stipulations of the contract, gives to the other party, as an *354alternative remedy, the right to assent to such abandonment, and treat the contractas dissolved. In the present case such refusal was proved.” We think that case quite unlike the one before us. Nor do we think *Welsh*v. *Gossler,*89 N. Y. 548, aids the appellant. In that case Finlay absolutely refused to receive the sugar which was purchased under a contract requiring it to be shipped in May or June, whereas it was not shipped until July, and the court observed, viz.: “Finlay had refused to accept, and they had refused to accept for him. No contract of sale and purchase remained. The omission to ship in June authorized Finlay to treat it as rescinded. ” The case is therefore quite unlike the one before us. We think no error was committed by the trial court in refusing, upon the motion for a nonsuit, to hold, as a matter of law, that the letter of the 18th of June rescinded the contract between the parties, or that it was.conclusive evidence of an abandonment of the contract on the part of the plaintiffs; nor in refusing to charge the jury as a matter of law that the letter operated *per se*to rescind the contract. We think there is no force in the position taken by the appellant that a new contract was made on the 21st of June, and that that contract was void by the statute of frauds. In considering all the evidence in the case, we think it was not the intention of the parties to enter into a new contract on the occasion of that interview. They seem on either side to have been more concerned with the actual condition of the hops, and of what could be or should be done to them to bring them into such situation as that they would correspond to the sample which had been furnished to the- plaintiffs on the occasion of the contract of sale. ■ Indeed, defendant testifies: “There was no second contract; there was nothing, only the old contract;” and he also testifies that in the interview of the 21st of June one of the plaintiffs told him how he could put the hops in condition to answer the contract, and that he would send a man over where the hops were, to show him how to place them in proper condition, and that the defendant added, viz.: “If they open all right and satisfactory to me, I will take' them, at the old price. * * * I made no reply to Wilber’s saying if the hops were opened and.dried and proved to be satisfactory they would take them. I said I would have them opened, and save what I could out of them.” In the-course of the charge delivered to the jury, it was said that if a new contract was made, as nothing was paid thereon, it was void, and that if the jury so found their verdict should be for the defendant. That instruction was quite as favorable as the defendant was entitled to, and we may properly assume' from the verdict that the jury found that there was no such new contract, made upon the occasion of that interview. As we have already said, we are' of the opinion that the evidence is entirely sufficient to warrant the jury in finding that no new contract was made. We have looked at the rulings made upon the trial, and find no prejudicial error therein. We think the verdict should stand.. Judgment and order affirmed, with costs. All concur.