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will not carry out the contract.” Withers v. Reynolds, 2 Judgment. P. & Ad. 882; Mersey Steel & Iron Co. v. Naylor, 9 A. C. BAIN, J. 434, per Lord Blackburn, at p. 442.

But it was urged by counsel for the defendant that, even if the defendant refused to perform the contract, the plaintiff did not act upon this refusal, but afterwards urged compliance with the contract by the defendant, as if it were still existing. The law is quite clear that be fore the plaintiff can claim, as he does in this action, that the contract has been rescinded, it must be shown that he acted upon and adopted the renunciation by the defendant. In Johnstone v. Milling, 16 Q. B. D. 460, Lord Esher, M. R., said: Where one party assumes to renounce the contract, that is, by anticipation refuses to perform it, he thereby, so far as he is concerned, declares his intention then and there to rescind the contract. Such a renunciation does not of course amount to a rescission of the contract, because one party to a contract cannot by himself rescind it . . The other party may adopt such renunciation of the contract by so acting upon it as in effect to declare that he too treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation. He cannot, however, himself proceed with the contract on the footing that it still exists for other purposes and also treat such renunciation as an immediate breach. If he adopts the renunciation, the contract is at an end, except for the purpose of the action for such wrongful renunciation; if he does not wish to do so, he must wait for the arrival of the time when in the ordinary course a cause of action on the contract would arise. He must elect which course he will pursue."

We find that the plaintiff, when he received the defendant's letter of the 23rd of July, at once shipped the car that was then ready loaded to Winnipeg instead of to the defendant for whom it was intended, and that he sold the

1901.

hay in Winnipeg. He had cut more than enough of new hay to make up the 100 tons that he had agreed to sell to Judgment. the defendant, but after this date he did not deliver any BAIN, J. of the hay as he had agreed to do. As the plaintiff says himself, when the defendant refused to take any more hay be could not deliver it; and it seems to be clear that he considered that his contract with the defendant was at an end, and he certainly acted as if it were. But immediately after the defendant refused to take any more of the hay the plaintiff placed the matter in the hands of his solicitors; and it is from their action that any doubt arises as to the plaintiff having elected to rescind the contract. They first took proceedings against the defendant to recover the price of the 28 tons that had been received by him; and, when this claim was settled by the defendant paying considerably less than the price of the hay according to the contract, they notified him that the plaintiff had instructed them to take proceedings for a settlement for the balance of the hay that had been contracted for. In their letter to the defendant of the 18th of October they say: "Mr. McCowan has instructed us to write you to know if you will accept delivery of the balance of the hay ordered by you, namely 791 tons. His instructions are to issue a statement of claim by the end of the week if you refuse acceptance;" and it is urged that this letter shows that the plaintiff was then recognizing the contract as one that was still existing. The letter certainly is open to this construction; but, as the plaintiff himself had before this shown so decidedly that he had adopted the defendant's renunciation, I do not feel inclined to lay too much stress on a letter like this. When the letter was written, it was quite impossible for the plaintiff to have carried out the original contract, as he had sold most of the hay in the stacks that the defendant had agreed to buy; and we can hardly suppose that he could have instructed his solicitors to write a letter that would commit him to perform his part of the original contract. The

1901. plaintiff says he did not know what the solicitors were Judgment. writing. Written, as the letter evidently was, without a BAIN, J. full apprehension of the position of the matter, I do not

think it is necessary to hold that it overrides the election the plaintiff had previously made to rescind the contract.

The principle on which the learned Judge estimated the plaintiff's damages is the correct one; and the amount at which he fixed the damages is justified by the evidence. I think the verdict should be affirmed, and the appeal dismissed with costs.

RICHARDS, J., concurred.

Appeal dismissed with costs.

END OF VOLUME XIII.

APPENDIX.

The following appeals from the Full Court of Queen's Bench for Manitoba in cases reported in 13 M. R. have been decided by the Judicial Committee of the Privy Council, or by the Supreme Court of Canada:

Re Liquor Act, 13 M. R. 239. Appeal to the Privy Council allowed. [1902] A. C. 73.

Ritz v. Schmidt, 13 M. R. 419. Court allowed.

Appeal to the Supreme

Sinclair v. Preston, 13 M. R. 228. Appeal to the Supreme Court dismissed.