weighed until June 16, 1886, and kept and per-, reached by denying the right of rescission to one who retains a substantial benefit under the contract (see infra, III. c),and the question of condition precedent is now of little importance further than is shown, infra, II. c. In fact, in Bradford v. Williams, L. R. 7 Exch. 259, Martin, B., said: "I think the words 'condition precedent' unfortunate. The real question, apart from all technical expressions, is, What in each instance is the substance of the contract?" Therefore, such cases as Pordage v. Cole, 1 Wm. Saund. 319, in which it was held that in case of independent covenants in a contract, the performance of one was not a condition precedent to the enforcement of the other, and hence that performacce was not a necessary allegation in an action to enforce the other, and the cases cited by Seargent William's note thereto, upon the question of what covenants are dependent and what independent have very little bearing on the question, and rather tend to confuse than to throw light upon it. b. Charter party. This question of condition precedent as bearing upon the right to rescind, has been more discussed in cases involving charter parties than elsewhere, and those cases are therefore collected in this place. In Freeman v. Taylor, 8 Bing. 124, a ship owner undertook to take a cargo to the Cape and then proceed with all convenient speed to Bombay and there put on a cargo of cotton for England, and upon arrival at the Cape he took a cargo on his own account to Mauritius, because of which he arrived at Bombay six weeks late, whereupon the cargo of cotton was refused him. In a suit for the breach it was argued that "defendant's remedy for the alleged deviation was by cross action, and that that there is due to the plaintiff from the defendant, on account of such nonperformance of said contract by it, a large sum of money, to wit, the sum of $300,000, being the amount of damage to and amount due the plaintiff by reason of the breach of said contract, from the date the defendant wrongfully refused to perform said contract on its part. By an amendment to said count the plaintiff claimed special damages for loss of profits which said firm, or the plaintiff, as survivor, would have received from the various shippers of grain but for said breach of contract, and alleged that said firm, or the plaintiff, as its representative, had a contract with the receivers and shippers of grain and seed at Chicago, for the purchase by them of the weights of grain and seed which said firm, or the plaintiff, as survivor, obtained or would have obtained in transferring grain and seed from the cars of western railroads having their terminus at Chicago to the cars of the defendant company; that but for said breach of said contract, said firm, or the plaintiff, as survivor, would have received 70 cents per car from such receivers and shippers of grain and seed at Chicago for the weights of 15,000 cars of grain and seed per year for eight years,― the unexpired term of said contract. The defendant pleaded non-assumpsit, and also a special plea, alleging, in substance, that at the July term, 1886, of the superior court of Cook county, the plaintiff and said Maynard exhibited their bill in chancery against the de. fendant in said court for the nonperformance of the same identical promises and undertaking, in the declaration mentioned; that at the March term, 1837, of said court the defendant he was not at liberty at his own discretion to put an end to the contract between him and plaintiff. The engagement to sail from the Cape with all reasonable speed was not a condition precedent but an independent covenant, for a breach of which defendant might be entitled to sue; it did not go to the whole consideration of defendant's contract. Unless it went to the whole consideration it was not a condition precedent the neglect of which would entitle the defendant to determine the contract." But the court left it to the jury to determine whether the deviation was of such a nature and description as to deprive the freighter of the benefit of the contract into which he bad entered with the instruction that if such was their opinion, defendant was excused from furnishing a cargo. In MacAndrew v. Chapple, L. R. 1 C. P. 643, 12 Jur. N. 8. 56, 14 L. T. N. S. 556, 14 Week. Rep. 891, where the freighter refused to load the vessel under the charter party because of an alleged deviation, the court says the case turns on the construction of the charter party and that a charter party may contain either a stipulation or a condition precedent, and the question whether any provision in the contract is one or the other is a matter of construction and depends on the judgment which the court may form of the intention of the parties. Failure to proceed with a ship directly to the port where the cargo is to be taken on will not exonerate the shipper from performing his part of the contract and furnishing the cargo, unless it is shown that the delay has precluded him from making any use of the vessel. Clipsham v. Vertue, Dav. & M. 343, 5 Q. B. 265, 13 L. J. Q. B. 2, 8 Jur. 32. In Ollive v. Booker, 1 Exch. 416, 17 L. J. Exch. 21, where a charter party stated that the vessel had been at sea three weeks, which was false, the court Mr. John N. Jewett, for appellant: To justify one party to a contract in suspending its execution and at the same time entitle him to sue for and recover as damages the future profits which might have been realized by its complete execution, the other party must have been guilty of a breach, such as in effect prevented, or absolutely put an end to, the further execution of the contract by the complaining party. was decreed to be indebted to said complain-1 After that opinion was filed a petition for ants for such nonperformance of said prom- I rehearing was granted and the rehearing reises and undertakings; that said cause was sulted in a departure from the rulings of the referred to a master in chancery for an ac- former opinion and that opinion is therefore counting, to ascertain the amount of such in- omitted, the rehearing opinion being substi debtedness; that the master found that the tuted for it. defendant was indebted to said complainants in the sum of $9,686.68 damages; that the court confirmed such finding, and entered a decree ordering the defendant to pay the complainants that sum and costs; that while an appeal to the appellate court from said decree was pending, Maynard died; that said appeal, being prosecuted against the present plaintiff as survivor, was afterwards affirmed by the appellate court, and that thereupon the defendant paid and satisfied the same. To said special plea the plaintiff replied that the cause of action set out in the There are two classes of cases which may declaration was not for the non performance of arise between parties to an executory contract. the same promises and undertakings in said The first consists of those cases which justify plea mentioned, and for which said decree was one of the parties in rescinding the contract by rendered, but for the nonperformance of other reason of some failure or default of the other and different promises and undertakings from party. In all such cases, the party availing the defendant to the plaintiff. At the trial, himself of the breach or default puts an end to which was had before the court and a jury, the contract absolutely, and is entitled to reevidence was offered by the plaintiff tending to cover only the value of the service rendered up sustain the cause of action alleged in his decla- to the time of the rescission. The second ration, and the jury thereupon returned their class consists of those cases where one of the verdict finding the issues for the plaintiff, and parties commits what is denominated a total assessing his damages at $75,000. For this breach, preventing the other from executing sum and costs the court, after denying the de- the contract on his part. In such cases the fendant's motion for a new trial, gave judg-party prevented from executing the contract ment for the plaintiff. On appeal to the appellate court said judgment was affirmed (40 Ill. App. 560), and this appcal is from said judgment of affirmance. held that it was a warranty and not a representation and that therefore it was a condition precedent, and being a condition precedent and not performed, the defendant was not bound to load the vessel. And this rule was followed in Oliver v. Fielden, 4 Exch. 135, 18 L. J. Exch. 353. Stipulations in a charter party that the vessel shall sail with all convenient speed are not conditions precedent, unless by a breach of the mthe object of the voyage is wholly frustrated. Tarrabochia v. Hickie, 1 Hurlst. & N. 183, 26 L. J. Exch. 26. Under a charter party providing that the vessel shall sail with all convenient speed, the failure to comply with the stipulation entitles the other party only to a cross action whenever the consequence of the failure has been only partially injurious and has left the main object of the contract still attainable. Dimech v. Corlett, 12 Moore, P. C. C. 199. In Glaholm v. Hays, 2 Mann. & G. 266, 2 Scott, N. R. 471, in which defendant was sued for repudiating a charter party because the voyage was not begun on the day named, the whole case was made to turn upon whether that stipulation was a condition precedent or not, the court saying, whether a particular clause in a charter party should be held to be a condition upon the nonperformance of which by the one party the other is at liberty to abandon the contract and consider it at an end, or whether it amounts to an agreement only, the breach whereof is to be recompensed by an action for damages, must depend upon the intention of the parties, to be collected from the terms of the agreement and from the subject-matter to which it relates. And in that case the stipulation was held to be a condition precedent. In Storer v. Gordon, 3 Maule & S. 308, where a ship owner was to take a cargo to a certain place | on his part may sue for and recover as damages the profits he would have made if he had been permitted to execute the contract. Masterton v. Brooklyn, 7 Hill, 61, 42 Am. and there deliver it and take on another one for the return voyage, it was held that the delivery was not a condition precedent to the obligation to furnish a return cargo, but that the fact that the outward cargo was seized by the government did not give the freighter the right to refuse to furnish the return cargo. In Davison v. Von Lingen, 113 U. S. 40, 28 L. ed. 885, it was held that a stipulation in a charter party as to the position of the vessel was a condition precedent. "It is a substantive part of the contract, and not a mere representation, and is not an dependent agreement, serving only as a foundation for compensation in damages. A breach of it by one party justifies a repudiation of the contract by the other party, if it has not been partially executed in his favor." A distinction has been made which may perhaps be valid where the stipulation was that the ship should sail by a specified date. A stipulation in a charter party that the vessel shall sail from a certain port before a specified date is a condition precedent, and unless she does so the charterer cannot be compelled to load her. Croockewit v. Fletcher, 1 Hurlst. & N. 893. And a distinction must be made between the above cases and those in which liability for freight is sought to be evaded, although all or most of the benefits of the voyage have been received. In Havelock v. Geddes, 10 East, 555, and Clipsham v. Vertue, 5 Q. B. 265, Dav. & M. 343, 13 L. J. Q. B. 2, 8 Jur. 32, the defendant did not seek to rescind or abandon the contract, but to refuse payment under a charter party after he had received the benefit of it, because the vessel was not made staunch as the charter party required, but the court held that after he had received the benett of the contract he could not insist that making the vessel staunch was a condition precedent. Dec. 38; United States v. Speed, 75 U. S. 8 Wall. 77, 19 L. ed. 449; United States v. Behan, 110 U. S. 338, 28 L. ed. 168; Hinckley v. Pitts burgh Bessemer Steel Co. 121 U. S. 264, 30 L. ed. 967. The acts and omissions of the appellant, complained of, were the result of a disagreement between the parties in respect to the mere incidents of the contract, and did not touch,even, the substance of its provisions or of its execution. Even if the matter involved in the disputes of the parties were of substance in the execution of the contract, and the refusal of the appellant to comply with the demands of the appellee could be treated as a breach justifying a rescission of the contract by the appellee, still the refusal was not so treated, nor was the refusal or any of the matters of disagreement acted upon by the appellee as a total breach on the part of the appellant, either promptly or within reasonable time. The settled law of this state is against the verdict and judgment appealed from. Selby v. Hutchinson, 9 Ill. 319; Palm v. Ohio & M. R. Co. 18 Ill. 217; Webster v. Enfield, 10 Ill. 300; Bond v. Bragg, 17 Ill. 69; Lucas v. Farrington, 21 Ill. 31; Doggett v. Brown, 28 II. 495; Graham v. Anderson, 42 Ill. 517, 92 Am. Dec. 89; Barrelett v. Bellgard, 71 Ill. 281; Weintz v. Hafner, 78 Ill. 29; Wilson v. Bauman, 80 Ill. 494: Papineau v. Belgarde, 81 Ill. 62; Leopold v. Salkey, 89 Ill. 421, 31 Am. Rep. 93; Bonnet v. Glattfeldt, 120 Ill. 175; Christian County v. Overholt, 18 Ill. 223. No mere money demand, although not re sponded to, growing out of a contract, can do more than lay the foundation for an action for the recovery of the money, or a rescission of the contract, unless the contract itself provides for further consequences. Palm v. Ohio & M. R. Co., Christian County v. Overholt, and Selby v. Hutchinson, supra, Chapin v. Norton, 6 McLean, 500; Dobbins v. Higgins, 78 Ill. 440; Chicago v. Sexton, 115 Ill. 230. A partial breach of a contract by one party, which may be compensated for in damages, does not justify an abandonment of execution by the other party. Keenan v. Brown, 21 Vt. 86; Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366. Richards, Maynard & Company availed themselves of all the advantages of their contract for a long time after the acts complained of as breaches on the part of the railway company were known to them. Prompt action is required in order to justify even an act of rescission. And what is reasonable time is a question of law to be deter. mined by the court. Holbrook v. Burt, 22 Pick. 546; Kingsley v. Wallis, 14 Me. 57; Negley v. Lindsay, 67 Pa. 217, 5 Am. Rep. 427; Morgan v. McKee, 77 Pa. 228; Leaming v. Wise, 73 Pa. 173. An agreement to arbitrate creates no binding obligation. It is revocable by either of the parties to it at any time before award actually made and published. Thompson v. Charnock, 8 T. R. 139; Mitchell v. Harris, 2 Ves. Jr. 129; Mitford, Pl. *264; Gourlay v. Duke of Somerset, 19 Ves. Jr. 430. When the obligation of performance by one party presupposes the doing of some act by the other prior thereto, the neglect or refusal to perform such act not only dispenses with the obligation of performance by the other, but also enti Where a charter party requires the owner of a vessel to go to a certain port and get a complete cargo and deliver it in London after a partial cargo has been delivered and accepted, the delivery of a complete cargo cannot be set up as a condition precedent to recovery of freight. Ritchie v. At-tles him to rescind, or, when rescission will not kinson, 10 East, 295. afford him an adequate remedy, to continue the work and recover such damages as the delinquency has occasioned against the defaulting party. Mausfield v. New York C. & H. R. R. Co. 102 N. Y. 205. A party seeking damages for breach of contract is not bound to prove performance on his part when the other party failed in something which was a necessary condition precedent to his own performance. Aller v. Pennell, 51 Iowa, 537. In case of a condition precedent the plaintiff must have performed before he can maintain an action to enforce the liability of the other party. In Bornmann v. Tooke, 1 Campb. 377, the contract was a charter party by which the ship owner undertook to sail by the first wind direct to the point of destination, and the shipper refused to pay freight because he did not do so, but the court held that such covenant was not a condition preceIf parties contract to exchange lands, each to dent which would exonerate the shipper from pay-exhibit to the other abstracts showing a good title ing freight after he had received the cargo, saying that his only remedy was on his covenant; and in a note it is stated that where mutual covenants go only to part of the consideration on both sides, and a breach may be paid in damages, defendant, having a remedy on his covenant, should not plead it as a condition precedent. If under a charter party the freighter refuses to load as agreed in the contract, the owner of the vessel has a right to regard the contract as abandoned without liability for a breach. Bradford v. Williams, L. R. 7 Exch. 259. by a day named, this is a condition precedent before either party can call upon the other to per form, and if either fails the other may regard the contract as at an end. Howe v. Hutchison, 105 Ill. 501. If a contract of sale requires the vendee to give security as a condition precedent, the vendor may rescind the contract upon his failure to perform in this respect. Harrison Mach. Works v. Miller, 29 Ill. App. 571. If two persons agree with a third to furnish supplies to the latter as the same shall be required fo discovering and locating lodes for the benefit of c. Party excused by nonperformance of condition all, the latter may treat this as a condition prece precedent. Of course if the contract provides a condition precedent the failure to perform it will exonerate the other party. A party cannot be held in damages for failure to perform a contract a condition precedent to the performance of which plaintiff has not performed. Goff v. Pacific Coast S. S. Co. 9 Wash. 386. dent, and upon failure to furnish the supplies he may abandon the enterprise or proceed to discover and locate lodes in his own right without regard to the contract. Murley v. Ennis, 2 Colo. 300. Where the contract provides that lumber should be delivered at a place to be designated by the other party, the designation of the place is a condition precedent to the delivery, and if there is a The elemental conditions of the present case | 16 Barb. 386; Olmstead v. Burke, 25 Ill. 86; have been the subject of a prior adjudication Hill v. Parsons, 110 Ill. 107. conclusive upon the parties, and which bars the appellee from any recovery in this proceeding. Rosenmueller v. Lampe, 89 Ill. 212, 31 Am. Rep. 74; Clayes v. White, 83 Ill. 540. Mr. James I. Best, with Mr. Pliny B. Smith, also for appellant: A refusal to arbitrate did not authorize plaintiffs to abandon their contract, and recover unearned profits as upon a total breach. Tobey v. Bristol County, 3 Story, C. C. 800; King v. Howard, 27 Mo. 22. A party who abandons his contract cannot maintain any action upon it. Palm v. Ohio & M. R. Co. 18 Ill. 217; Christian County v. Overholt, 18 Ill. 223; Dobbins v. Higgins, 78 Ill. 440; Chapin v. Norton, 6 McLean, £00. Since the appellee alleged that Richards, Maynard & Company performed the contract until the 16th day of June, 1886, and were then ready and willing to proceed with its performance, but that the appellee refused to carry out the contract on its own part and abandoned its performance, he must prove such breach as alleged. Leopold v. Salkey, 89 Ill. 412, 31 Am. Rep. 93; Badgley v. Heald, 9 Ill. 64; Swanzey v. Moore, 22 Ill. 63, 74 Am. Dec. 134. In the absence of a contract for the sale of these weights, the loss of such prospective sales is entirely too contingent, uncertain, and remote to constitute an element of damages. Frazer v. Smith, 60 Ill. 145; Horner v. Wood, refusal to designate the other party is absolved from all liability on the contract, although at the time he does not own lumber which could be tendered under it. Warner v. Wilson, 4 Cal. 310. The appellant did not undertake to pay for the building, and the appellee cannot thus make it do it. Toledo, W. & W. R. Co. v. Jacksonville Depot Bldg. Co. 63 Ill. 308. The mere failure to pay money, though it is conceded to be due, will not, as a rule, authorize a party to abandon his contract and bring an action for future profits. Palm v. Ohio & M. R. Co. 18 Ill. 217. Mr. William A. Gardner, for appellee: When there is a contract which is to be performed in the future, if one of the parties has said in effect to the other: "If you go on and perform your part of the contract I will not perform mine," that, in effect, amounts to saying, "I will not perform the contract." In that case the other party may say: "You have given me distinct notice that you will not perform the contract. I will not wait till you have broken it, but I will treat you as having put an end to the contract, and if necessary I will sue you for damages, but at all events I will not go on with the contract.' Withers v. Reynolds, 2 Barn. & Ad. 882; Mersey Steel & Iron_Co. v. Naylor, 9 App. Cas. 442; Hochster v. De Latour, 20 Eng. L. & Eq. 157; Franklin v. Miller, 4 Ad. & El. 599; Honck v. Muller, L. R. 7 Q. B. Div. 92. The breaches that occurred in the case at bar, as far as their effect is concerned, would be the same in principle as where a person "wilfully places the property of another in a situation where it cannot be recovered, or its true in that case the attendance of rehearsals did not go to the root of the matter, and was not a condition precedent a breach of which gave the other party a right to rescind. Where there is a mutual contract for the per-d. Excuse for not performing condition precedent. formance of successive acts, the refusal upon one side to perform will justify the other party in No excuse will exonerate one from the performtreating the contract as rescinded. Ward v. Ka-ance of a condition precedent unless it be a positive del, 38 Ark. 174. Where one party to a contract refuses to do something which is necessary to enable the other to perform his part of the contract, the latter may abandon the contract and recover his damages from the other, and is not liable for his own failure to perform. Chapin v. Norton, 6 McLean, 500. interference and actual hindrance by the other party, or some distinct and tangible fraud. Taylor v. Gallup, 8 Vt. 340. But a person may maintain an action for breach of the contract, without performing a condition precedent, if he were prevented from performing it by a breach on the part of the other party. Jewell v. Blandford, 7 Dana, 472. The nonperformance by the vendor of a condition precedent gives the vendee the right to re-III. Right to rescind contract without liability for pudiate the whole contract,-as where the sale is of a certain quantity of iron to be shipped from Glasgow and the iron is actually shipped from Leith. Filley v. Pope, 115 U. S. 213, 29 L. ed. 272. nonperformance. a. Necessity of mutual consent. On principle one party can no more rescind a If a stipulation in a contract is a condition pre-contract than he can make it. But in practice if cedent, the obligee may repudiate the contract, if one party refuses to perform he is regarded as conthe obligor does not perform the condition. Low-senting to a rescission so that upon the other party's ber v. Bangs, 69 U. S. 2 Wall. 728, 17 L. ed. 768. In Bettini v. Gye, L. R. 1 Q. B. Div. 183, 45 L. J. Q. B. 209, 34 L. T. N. S. 246, 24 Week. Rep. 551, in which the director of an opera claimed the right to refuse to carry out the engagement with a singer be cause of the latter's neglect to comply with his contract to attend rehearsals six days before the opening of the season, the court says: "If parties sufficiently express an intention to make the literal fulfilment of a matter of apparently very little importance a condition precedent it will be one; or if they think the performance of some matter apparently of essential importance not really vital, and sufficiently express such intent, it will not be a condition precedent;" and the court decides that acting on such consent the contract is at an end. Where one party is in default and the other not, the party not in default may in most cases, though not in all, treat the contract as rescinded, and act accordingly; but this is a mode of rescission by consent. Cromwell v. Wilkinson, 18 Ind. 365. One party may, by neglecting or refusing to perform the contract on his part, place it in the power of the other party, where he is not also derelict, to avoid it or not at his pleasure. The breach of one party may in such case be treated by the other as an abandonment of the contract authorizing him. if he chooses to do so, to disaffirm it; and thus the assent of both parties to the contract is sufficiently manifested,-that of the one by his neglect or re value ascertained, by mixing it with his own, or in any other manner will consequently be compelled to bear the inconvenience of the uncertainty or confusion which he has produced, even to the extent of surrendering the whole, if his share cannot be distinguished, or responding in damages at the highest value at which the property in question can be reasonably estimated." Armory v. Delamirie, 1 Smith, Lead. Cas. 637, note. Absolute refusal is to be considered in the same light as respects the remedy, as an absolute physical prevention by the defendants. Hosmer v. Wilson, 7 Mich. 304, 74 Am. Dec. 716; Cort v. Ambergate R. Co. 17 Q. B. 127; Derby v. Johnson, 21 Vt. 21; Haines v. Tucker, 50 N. H. 311; Smith v. Lewis, 24 Conn. 624, 63 Am. Dec. 1980; Clement & Hawkes Mfg. Co. v. Meserole, 107 Mass. 362; Collins v. Delaporte, 115 Mass. 162. The true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract. Freeth v. Burr, L. R. 9 C. P. 208. One of the parties to a contract cannot, by himself, rescind, but if his acts amounted to a rescission had he the power to rescind, can it be doubted that the other party would have a right to sue for damages if necessary? Johnstone v. Milling, L. R. 16 Q. B. Div. 460; Dingley v. Oler, 117 U. S. 503, 29 L. ed. 984. An absolute refusal to accept goods ordered, although the goods were not in readiness for delivery, should be considered in the same light, as respects the remedy, as an absolute fusal to perform his part of the contract, and of the other by his suing, not for the breach, but the value of any act done or payment made by him under the contract, as if it had never existed. Bannister v. Read, 6 Ill. 92. The refusal of one party to perform his contract amounts on his part to an abandonment of it. The other party thereupon has a choice of remedies. He may stand upon his contract, refusing assent to an adversary's attempt to rescind it, and sue for a breach or in a proper case for a specific performance, or be may assent to its abandonment and so effect a dissolution of the contract by the mutual and concurring assent of both parties: in that event he is simply restored to his original position, and can neither sue for a breach nor compel a specific performance, because the contract itself has been dissolved. Graves v. White, 87 N. Y. 463. Where, after a note had been given for goods which were delivered to the maker, the seller forcibly retook possession of them, whereupon the maker of the note refused to pay it on the ground of failure of consideration, the court said: There is no total failure of consideration here, "unless the contract has been dissolved. It could be dissolved by mutual consent only. The retaking possession is a mere act of trespass which would give a right of action, but it did not give the maker of the note a right to treat it as a rescission or as a dissolution of the contract." Stephens v. Wilkinson, 2 Barn. & Ad. 320. It is an established rule of law that where one of the contracting parties absolutely refuses to perform, such a refusal will be regarded as a consent on his part to a rescission of the contract, and the other contracting party may, if he chooses so to do, rescind the contract, and if he has done anything under it he may immediately sue for compen physical prevention by defendants, and the plaintiff might bring his action in such a case before completing the goods ordered and tendering performance on his part. Hosmer v. Wilson, Derby v. Johnson, Haines v. Tucker, Smith v. Lewis, Clement & Hawkes Mfg. Co. v. Meserole, and Collins v. Delaporte, supra. Mr. A. M. Pence also for appellee. Shope, J., delivered the opinion of the court: It is insisted in this court that the evidence is insufficient to sustain the verdict and judg ment. The right and duty of this court to review the facts are placed upon two grounds: First, that under section 2, article 6, of the Constitution which provides: "The supreme court shall consist of seven judges, and shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases, "-the provision of section 90 of the practice act, restricting the powers of this court to the consideration of questions of law only, and prohibiting the assignment of errors calling in question the judgment of the appellate courts upon questions of fact, is unconstitutional and void. We have so frequently held the act valid that it would seem to be no longer an open question. But, if it was, the correctness of former holdings in this regard is clearly authorized by the provisions of section 11 of the same article of the Constitution. It is there provided that after the year 1874 inferior appellate courts, sation on a quantum meruit. Shaffner v. Killian, 7 Ill. App. 620. Where the question is whether one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do or do not amount to an intimation of an intention to abandon and altogether refuse performance of the contract. Freeth v. Burr, L. R. 9 C. P. 208, 43 L. J. C. P. 91, 29 L. T. N. S. 773, 22 Week. Rep. 370. Mere nonperformance is not rescission. A rescission of a contract does not follow as a consequence of a nonperformance by either party. Duncan v. Jeter, 5 Ala. 604, 39 Am. Dec. 342; Stone v. Grover, 1 Ala. 289. Renunciation must be acted on. In Avery v. Bowden, 5 El. & Bl. 714, where the performance of the contract was prevented by the breaking out of war before the expiration of the time for performance, the plaintiff relied upon a renunciation before that, but the court held that such renunciation could not give a cause of action while the plaintiff was still insisting upon the performance of the contract. This case was affirmed in 6 El. & Bl. 953. And a similar ruling was made in Reid v. Hoskins, 5 El. & Bl. 729. b. Contract may be rescinded. When a contract is executory on both sides, upon nonperformance by one party the other may declare it rescinded. School Dist. v. Hayne, 46 Wis. 511. The failure of one of the parties to fulfil the agreement authorizes the other party to refuse to perform without liability for a breach. Carney v. Newberry, 24 Ill. 203; Graham v. Holloway, 44 Ill 385. |