title the vendor to rescind the sale because of the failure to make payment.89

It is not unusual to insert in contracts a clause intended to prevent a forfeiture or a claim of damages for non-performance or for delay in performance, when the default is attributable to strikes or other labor troubles, to unavoidable stoppage of operations from other causes, or to unavoidable accidents. Such a provision is perfectly legal, and it will protect the contractor so far as it goes. But the effect is to render inexcusable a default or delay which is not attributable to one or other of the specially excepted causes, and to give the other party a right to rescind for delay or failure of performance not so caused." But in a case in Texas, where defendant contracted to convey certain land to plaintiff on or before a specified date, "except unavoidably restrained," and at the time of such contract defendant had not title to all of the land, but had applied for a patent and had done all in his power to procure it, it was held that his failure to perform his agreement within the specified time was not ground for rescinding the contract.o1

Finally, delay or default in performance of a contract may be neutralized by the acquiescence in it of the other party, or his waiver or failure to object, or by his consent to a corresponding modification of the contract.92 And where past delays or failures of performance in a continuing contract have been acquiesced in and settled for, the contract' cannot be terminated merely from an assumption, from past experience, that similar delays or failures will occur in the future, without first taking steps to put the other party in default.93

§ 202. Refusal of Performance.-When one of the parties to a contract unjustifiably refuses to perform his

89 Mastin v. Grimes, 88 Mo. 478.

90 United States Iron Co. v. Sloss-Sheffield Steel & Iron Co., 71 N. J. Law, 1, 58 Atl. 173.

91 Burwell v. Sollock (Tex. Civ. App.) 32 S. W. 844.

92 Papin v. Goodrich, 103 Ill. 86; Brock v. Hidy, 13 Ohio St. 306; Stone v. West Jersey Ice Mfg. Co., 65 N. J. Law, 20, 46 Atl. 696; Davies v. Hotchkiss (Sup.) 112 N. Y. Supp. 233.

93 Barnette Sawmill Co. v. Ft. Harrison Lumber Co., 126 La. 75, 52 South. 222.

94

in

agreement as a whole, or any substantial part of it, this gives to the other party the option to rescind the entire contract, provided he offers to do so within a reasonable time, and will restore what he has received, and provided that the situation of the parties remains so far unchanged that they can be restored to their first position. Thus, in contracts for the sale of goods, if one who has sold a commodity to another repudiates his obligation to deliver, the other party may act upon such refusal and rescind the contract.95 And so, in case of a refusal without cause to furnish any stallment of goods, under a contract providing for their delivery and payment in installments, or a refusal to deliver the goods until the seller has obtained a secured note for part of the price, or a refusal to pay the storage charges of a bailee having possession of the goods at the time of the sale, where it was a part of the seller's agreement that he would pay such charges and deliver the property on demand of the purchaser.98 And on the other hand, a vendor who contracts to sell and deliver personal property at a time in the future at a certain price, and who, when the time for delivery arrives, is ready and willing to make delivery, but is prevented from doing so by the unjustifiable refusal of the purchaser to accept, may elect to consider the contract at an end. The same rule applies where the buyer, without sufficient cause, rejects a part of the goods

97

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94 Munroe v. Trenton Oil Cloth & Linoleum Co., 206 Fed. 456, 124 C. C. A. 362; Dubois v. Xiques, 14 La. Ann. 427; Chase v. Turner, 10 La. 19; Dean v. Hitchings, 40 Minn. 31, 41 N. W. 240; Lockwood v. Geier, 98 Minn. 317, 108 N. W. 877, 109 N. W. 245; Benson v. Larson, 95 Minn. 438, 104 N. W. 307; Somers v. Sturre, 106 Minn. 221, 118 N. W. 682; Webb v. Stone, 24 N. H. 282; Luey v. Bundy, 9 N. H. 298, 32 Am. Dec. 359; Graves v. White, 87 N. Y. 463; Hebrew Pub. Co. v. Reibstein, 126 App. Div. 274, 110 N. Y. Supp. 660; Halloway v. Davis, Wright (Ohio) 460; El Paso & S. W. R. Co. v. Eichel (Tex. Civ. App.) 130 S. W. 922. See Houston v. Greiner, 73 Or. 304, 144 Pac. 133; Morris v. Brown (Tex. Civ. App.) 173 S. W. 265.

95 Staley v. Lyman, 151 Ill. App. 137; H. D. Williams Cooperage Co. v. Scofield, 115 Fed. 119, 53 C. C. A. 23.

96 California Sugar & White Pine Agency v. Penoyar, 167 Cal. 274, 139 Pac. 671.

97 Bumpass v. Harrolson, Minor (Ala.) 162.

98 Malone v. Minnesota Stone Co., 36 Minn. 325, 31 N. W. 170. 99 Middle Division Elevator Co. v. Vandeventer, 80 Ill. App. 669; Tyson v. Doe, 15 Vt. 571. See Hill v. McKay, 94 Cal. 5, 29 Pac. 406.

delivered under the contract. The seller may thereupon declare the contract at an end and refuse to proceed further under it.100 And so, the seller may treat the contract as canceled where it provides that the goods shall be taken up at least every thirty days, but the buyer refuses to furnish shipping directions after numerous requests.101 And so, where a mutual contract was entered into to take the entire output of a coal mine for a specified season, the quantity being fixed within designated limits, and afterwards the purchaser refuses to take the coal according to the contract, such refusal renders it unnecessary for the owner of the mine to take the coal out of the ground, and gives him an immediate right of action.102

The same principles apply to contracts for the sale of real property. Where a vendor is ready, able, and willing to fulfill the contract on his part, and tenders performance, but the vendee refuses to buy, the vendor may rescind the contract, and may, if he chooses, then sell the land to another person without incurring any responsibility.103 This rule was applied in a case where the vendees refused to take the property because one of the proposed grantees in the deed was dead, and because they said that the deed was "not right," but without pointing out any defects,104 and in a case where the vendee refused, without assigning any sufficient reason, to comply with that part of his contract which required him to give a mortgage on the property for part of the price,105 and in a case where a person purchased the equitable title to land, but refused to pay therefor until the vendor should have recovered the legal title.106 Conversely, the consideration for a contract for the sale of land, in the vendee's favor, is the title to be conveyed upon performance, and if the vendor refuses to convey after full performance

100 J. Aaron & Co. v. M. G. Smith Co., 45 Tex. Civ. App. 203, 100 S. W. 347.

101 Long Bell Naval Stores Co. v. Central Commercial Co., 178 Ill. App. 7.

102 Morier v. Moran, 58 Ill. App. 235.

103 Lane v. Lesser, 135 Ill. 567, 26 N. E. 522.

104 Hunter v. Lewis, 234 Pa. 134, 82 Atl. 1100.

105 Davison v. Associates of Jersey Co., 6 Hun (N. Y.) 470.

108 McKinley v. Butler, 4 Litt. (Ky.) 196.

or offer to perform, the consideration for the contract wholly fails and there is ground for rescission by the vendee.107 So, under a contract to sell lots with a right of way until a road should be opened in front of the lots, the closing of the right of way and refusal to open the road entitle the purchaser to rescind.108 And a party to a contract who agrees to sell land, and to erect thereon a building in accordance with certain plans and specifications, but who refuses to follow the specifications when requested by the purchaser, thereby authorizes the purchaser to consider the contract as rescinded.109 Again, a deed conveying land in consideration of marriage will be canceled and a reconveyance directed when the grantee has refused to carry out the agreement.110

Other forms of contract besides sales are included within the operation of these rules. Thus one may rescind a special contract to perform certain work in a given time for another, upon the latter's refusal to make a stipulated payment, and he may recover pro rata at the contract price for what he has done.111 And conversely, if one has undertaken to perform an act and has been paid the consideration, and then refuses or fails, the promisee may treat the refusal, or such a degree of neglect as is equivalent to a refusal, as a rescission of the contract and may recover back the price paid.112 In an early case in New York, there was an agreement between A. and the water commissioners of the city of New York, by which A. agreed to perform certain work upon the Croton aqueduct, and it was provided that A. should make any alterations in the form, dimensions, or materials of the work which might be directed in writing by the water commissioners or by their chief engineer. It was held that the water commissioners had no authority to

107 Miller v. Shelburn, 15 N. D. 182, 107 N. W. 51; Montgomery v. Wise, 138 Mo. App. 176, 120 S. W. 100.

108 Miller v. Beck, 72 Or. 140, 142 Pac. 603.

109 Buena Vista Co. v. McCandlish, 92 Va. 297, 23 S. E. 781.

110 Lambert v. Lambert, 66 W. Va. 520, 66 S. E. 689, 19 Ann. Cas. 537.

111 Preble v. Bottom, 27 Vt. 249.

112 Mound City Distilling Co. v. Consolidated Adjustment Co., 152 Ill. App. 155.

stop the work, under color of changing the form or dimensions of the work, without any directions in writing for such change having been given to A., either by the commissioners or by the chief engineer, and that such stopping of the work was to be deemed a rescission of the contract by the commissioners, so that A. could recover upon a quantum meruit for the work actually done by him.113 So also, in relation to building contracts, when there is a refusal to give a bond for payment of the price, as agreed, a building contractor has a right either to rescind the contract, leaving him without remedy upon it, or to treat the contract as terminated and sue for the breach.114 And a building contractor is justified in abandoning his work when the owner refuses to pay as the work progresses, as provided by the contract, or where such owner orders him to quit and says that he will have the work done by another.115

To warrant a rescission on this ground, the refusal to perform must be distinct, unequivocal, and absolute, and must be acted upon as such by the party to whom the broken promise was made.118 A mere suggestion that performance of the contract should be delayed to a future time is not a repudiation of its obligations nor ground for rescission,117 nor is a mere request that a commodity which is the subject of a sale should conform to certain standards not incorporated in the contract.118 And the refusal of the vendee in an executory contract for the sale of real estate to perform the contract according to its terms, with an offer to perform in accordance with the vendee's own erroneous interpretation thereof, does not entitle the vendor to rescind.119 But writing to the vendor not to send or deliver the article contracted to be purchased is a distinct refusal

113 Clark v. City of New York, 3 Barb. (N. Y.) 288, affirmed in 4 N. Y. 338, 53 Am. Dec. 379.

114 Clark v. Gulesian, 197 Mass. 492, 84 N. E. 94. 115 Worden v. Connell, 196 Pa. 281, 46 Atl. 298.

116 Armstrong v. Ross, 61 W. Va. 38, 55 S. E. 895.

117 Brockenbrough v. Champion Fibre Co., 176 Fed. 840, 100 C. C. A. 310.

118 Howe Grain & Mercantile Co. v. Taylor (Tex. Civ. App.) 147 S. W. 656.

119 Armstrong v. Ross, 61 W. Va. 38, 55 S. E. 895.