Sherman v. Holmes

16 Jones & S. 534

Opinion

The court at General Term, held: “The true contract was as above stated, and in its nature it was severable as to each and every cargo. Upon the arrival and discharge of a cargo the defendants were bound to settle for it according to contract as a condition precedent to the next delivery. This they failed to do upon receipt of the first cargo. Moreover, while thus in default, they notified the plaintiff not to make any more deliveries. This constituted a rescission of the contract on their part. Under these circumstances the plaintiff had a right to recover for part performance made up to that time, and the defendants could no longer sue in affirmance of the contract. A party cannot be permitted to rescind and affirm at the same time, or to rescind in part and affirm in part. He must make his election. To be in a position to urge their counterclaims, the defendants should have refrained from rescinding, and should have offered to perform the contract on their part.”

Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.