fendant from making any claim if, on examination in the factory, the rubber had proven to be deficient in quality.

The anticipatory breach was founded upon the claim that defendant had insisted upon importing two new terms into the contract, and refused to fulfill unless these were complied with. One was that there should be a laboratory test before delivery, and the other that the rubber delivered should be "round thin disks." The court left it to the jury to say whether the defendant had so insisted, and, if so, whether it was a refusal to fulfill the contract according to its terms. No fault is found with the charge, and there is evidence to sustain the jury's finding on these questions in favor of plaintiff. Assuming the facts to be rightly found, there was a clear anticipatory breach, for the refusal of a party to complete a contract, except upon new terms not included in the original contract, is equivalent to a refusal to complete at all.

The defendant, however, invokes the rule that, while an anticipatory breach will entitle the party against whom it is made to sue at once for damages without tendering performance, still, in order to do so, he must elect to consider the contract as broken; and he urges that plaintiff's repeated tenders of performance are conclusive evidence that it did not so elect. We do not so understand the rule. It is true that, in order to sue upon an anticipatory breach, the party suing must elect to consider the contract as terminated by the breach; but there is no particular time within which he must make that election, and an offer, or repeated offers, to complete on the contract terms, or on modified terms, unless accepted by the vendee, does not constitute a waiver of the breach. Canda v. Wick, 100 N. Y. 127, 2 N. E. 381; Frans Poel et al v. Brunswick-Balke-Collender Co., 159 App. Div. 365, 144 N. Y. Supp. 725.

The judgment and order appealed from should be affirmed, with

costs.

LAUGHLIN, DOWLING, and HOTCHKISS, JJ., concur.

INGRAHAM, P. J. I do not concur in the affirmance of this judgment. The action was to recover on a contract whereby the plaintiff agreed to sell and deliver to the defendant about 15 tons of prime thin disk Manicoba rubber, to be delivered, about 5 tons each month, during September, October, and November, 1912. The complaint alleges that on or about the 16th day of August, 1912, the plaintiff delivered to the defendant about 11,120 pounds of said rubber, for which the defendant paid the contract price, and that thereafter, at various times in October and November, 1912, the plaintiff tendered to defendant. certain quantities of rubber under the terms of the said contract, but that the defendant wrongfully refused to accept it or to pay for the same, and that thereafter, on notice to defendant, the plaintiff sold the rubber at a price less than the contract price, and that there was justly due and owing to the plaintiff from defendant the amount which the defendant promised and agreed to pay for the rubber delivered under said contract and the amount expended by plaintiff for the

account of the defendant, less the amount received for the rubber; and for that sum the plaintiff demanded judgment.

The answer denied the allegations of tender. The issue presented, therefore, was whether defendant had committed a breach of the contract in refusing to accept the rubber tendered to the defendant in October and November. By an amendment to the pleadings on the trial, the plaintiff further alleged that on or about the 9th day of October, 1909, the defendant wrongfully repudiated the said contract, and definitely notified the plaintiff that it would not thereafter perform the same. At the trial considerable testimony was taken as to these various tenders and as to the alleged repudiation of the contract. When the court came to submit the case to the jury, it was submitted wholly on the theory of the repudiation of the contract by the defendant, or what may be called an anticipatory breach of the contract in October. The court said to the jury:

"The insistence upon such demand invalidated the tender. There has been no tender of performance by the plaintiff in this case, nor is there one claimed. The plaintiff has withdrawn any claim that it did make a valid tender in this action, and the plaintiff could not then recover in this action unless it be shown that the defendant positively refused to carry out the contract, in which case the law makes an exception, so that, where one party to a contract positively refused to perform his part of a contract, the law does not require the other party to go through the idle form of offering to perform his part. An absolute refusal upon the part of one party to carry out the contract is termed a repudiation."

The court further charged the jury:

"If the jury believe that there was no positive refusal by the defendant to carry out the contract, the verdict must be for the defendant. If, on the other hand, the jury believe that there was a positive refusal to carry out the contract by the defendant, it shall then consider whether the plaintiff so regarded it and acted upon it, or whether it treated the contract as still in force."

So the recovery of the plaintiff depends upon this anticipatory breach. of the contract by the defendant.

At the end of the case counsel for the defendant moved to dismiss the complaint, upon the ground that there was not evidence to sustain a finding of repudiation which would be clear and unmistakable. He also moved for the direction of a verdict, on the ground that there were no facts which would sustain a finding of repudiation or excuse a tender of performance on the part of the plaintiff. I think the motion to direct a verdict for the defendant should have been granted, on the ground that there was no express repudiation of the contract, and that plaintiff was not relieved from the necessity of making a tender as provided for in the contract to recover for a breach thereof. The evidence showed that there was objection made by the defendant to certain of the rubber included in the first delivery under the contract, and that plaintiff received back a portion of the rubber so delivered and submitted in its place other rubber, which apparently was accepted by the defendant. There was then some correspondence between the defendant and plaintiff, and also various negotiations.

The defendant insisted at one time upon its right to test the rubber in its laboratory before accepting it, and plaintiff insisted, on the

other hand, that defendant was obliged either to accept or reject the rubber in the warehouse, where it was stored. But, as I read this record, there was no evidence to show that at any time the defendant refused to accept the rubber which complied with the contract, and, after the so-called refusal, the defendant again and again offered to receive any rubber that the plaintiff would tender,' and accept it if it complied with the contract. None of these acts, which are now relied upon to sustain the claim of an anticipatory breach by the defendant, was relied upon by the plaintiff, for they afterwards made abortive. tenders of the rubber, treated the contract as in full force and effect, and never, prior to the time that the amendment was made to the complaint, treated the acts of the defendant prior to the time of the refusal as an absolute and unequivocal breach of the contract. It is settled in this state that, for a party to such a contract to avail himself of such a repudiation, it must be adopted by the other party and acted upon by him. Becker v. Seggie, 139 App. Div. 463, 124 N. Y. Supp. 116; Ga Nun v. Palmer, 202 N. Y. 483, 96 N. E. 99, 36 L. R. A. (N. S.) 922.

It seems to me that, upon the whole evidence, the parties clearly understood the situation, and at no time was it claimed that the acts of the defendant constituted a breach of the contract, and, as I understand this record, there was no testimony that the defendant ever placed itself in the position of refusing to perform the contract or to accept any rubber offered to it that complied with the terms of the con

tract.

Therefore I think the verdict of the jury was not sustained by the evidence, and that the judgment and order should be reversed.

(87 Misc. Rep. 300) *

EVANS v. ASCHER DETECTIVE AGENCY AND NEW YORK HARBOR PATROL, Inc.

(Supreme Court, Appellate Term, First Department. November 19, 1914.) 1. WORK AND LABOR (§ 24*)-CONTRACT FOR SERVICES-QUANTUM MERUITCONTRACT AS EVIDENCE-PLEADING.

Where, in an action on a quantum meruit for services rendered under a contract, defendant admitted the rendition of the services, but failed to deny their alleged value, though it further alleged that they were rendered under a contract set forth in the second paragraph of the complaint, defendant was entitled to introduce the contract in evidence in diminution of plaintiff's claim for the value of his services, and the court, therefore, erred in directing a verdict for the value, rather than for the contract price.

[Ed. Note. For other cases, see Work and Labor, Cent. Dig. §§ 4346; Dec. Dig. § 24.*]

2. PLEADING (§ 397*)—VARIANCE-DISMISSAL ON MERITS.

Where plaintiff sued defendant corporation for the return of $1,000 alleged to have been advanced by plaintiff to it under the terms of a contract, and plaintiff proved that he had advanced only $500, defendant was not entitled to a dismissal on the merits.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 1337; Dec. Dig. § 397.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from City Court of New York, Trial Term.

Action by Lewis L. Evans against the Ascher Detective Agency and New York Harbor Patrol, Incorporated. From a judgment of the New York City Court in favor of plaintiff on his second cause of action, entered on a verdict, and dismissing plaintiff's third cause of action for failure of proof, defendant appeals. Reversed, and new trial ordered. Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

Brussel & Beebe, of New York City (E. Walter Beebe, of New York City, of counsel), for appellant.

Ölcott, Schwarzschild & Schramm, of New York City (Merrill Bishop, of New York City, on the brief), for respondent.

BIJUR, J. The chief point involved in this controversy is the exclusion by the learned trial judge of evidence offered by the defendant of a contract between itself and the plaintiff.

The complaint, for a first cause of action, sets out this contract and the rendition of services thereunder, with a claim for the balance due in accordance therewith. For a second cause of action, and in the eighth paragraph of the complaint, the plaintiff pleaded the rendition of services at defendant's request, and in the ninth paragraph the reasonable value of said services. The answer, without referring to the two "separate defenses of action," admitted so much of the eighth paragraph as alleged the rendition of services by the plaintiff, but failed to deny the ninth paragraph, which alleged their reasonable value.

At the trial, plaintiff moved, and was allowed, to discontinue as to the first cause of action, and secured the direction of a verdict on the second cause, on the ground that it was not denied. Defendant urged that the failure to deny the reasonable value of the services was a clerical oversight, and asked to withdraw a juror and to be allowed to apply at Special Term for leave to amend, which was denied.

[1] Defendant then sought to introduce in evidence the contract in diminution of plaintiff's claim for the value of his services. Plaintiff's counsel admits on this appeal that under ordinary circumstances, and in conformity with the law as laid down in Rubin v. Cohen, 129 App. Div. 395, 113 N. Y. Supp. 843, such proof would have been competent and material, but claims that, the value of the services having been admitted by failure to deny, proof of the contract became immaterial. This contention, however, disregards the defendant's express pleading. Although the answer admits so much of the allegations contained in paragraph eighth as alleges the rendition of services to the defendant, and fails to deny the ninth paragraph, namely, the value of such services, it nevertheless continues as follows:

"This defendant alleges that the said services so rendered by the plaintiff to the defendant were rendered under and pursuant to the agreement set forth in the second paragraph of the complaint."

In other words, defendant, admitting the value of plaintiff's services, alleges that, so far as its obligation is concerned, it is to pay, not the value, but the contract price. The direction of a verdict in favor of

plaintiff for the value, rather than for the contract price, of his services, was therefore error.

[2] As the pleadings stood at the trial, the dismissal of the third cause of action should not have been upon the merits. The cause of action is for the return of $1,000, alleged to have been advanced by plaintiff to defendant under the terms of the contract. Plaintiff's proof, however, showed that he had advanced only $500. Since there must be a new trial of this case, it will probably accord with the spirit of the decision in Muller v. City of Philadelphia, 113 App. Div. 92, 96, 99 N. Y. Supp. 93, to allow all the parties to apply for leave to put their pleadings in such shape as to present adequately the issues which they desire to have tried.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

PIKEWAY REALTY CORPORATION v. COHEN.

November 19, 1914.)

(Supreme Court, Appellate Term, First Department. LANDLORD AND TENANT (§ 192*)-EVICTION-FIRE-LIABILITY FOR RENTRENT PAYABLE IN ADVANCE.

Where under a lease rent was payable on the 1st day of each month in advance, and the rent for January, 1914, was due on January 1st, the premises having been destroyed by fire on the following day, and the tenant having moved out, he was nevertheless liable for the January rent.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 777, 778, 781, 784-786; Dec. Dig. § 192.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Pikeway Realty Corporation against David W. Cohen. From the judgment for defendant, plaintiff appeals. Modified.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

Sol A. Cohn, of New York City, for appellant.

Charles Tolleris, of New York City, for respondent.

BIJUR, J. Plaintiff sued for rent due January 1, 1914, under a lease. The premises were destroyed by fire on the following day, and the tenant moved out.

The respondent on this appeal suggests neither argument nor authority sustaining the judgment, which must be modified on the authority of Brunswick-Balke-Collender Co. v. Wallace, 65 Misc. Rep. 27, 119 N. Y. Supp. 287, by increasing the same to the sum of $116.50, with appropriate costs in the court below and costs of this appeal to the plaintiff appellant. All concur.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes