Sec 917

It is not necessary, if a large lot is sold, that each item should correspond with the sample. It is enough if there is an average correspondence.3 And, in any view, it is admissible to prove a custom that, upon a sale of berries in bags by sample, the sample represents the average quality of the entire lot sold.4

Sec 918

A vendor may, notwithstanding the correspondence with the sample, be held liable for breach of an express agreement of merchantability.5 A sample, also, is assumed to be free from secret defects.6 But the sample excludes implied warranty.7 V. RESCISSION.

Sec 919

"We have already seen that rescission may be granted on the application of a party who has made a contract under a mistake;8 and so when the other party fails to perform in whole or in part.9 We have also seen that to obtain rescission, the party seeking relief must do equity;10 that he cannot have relief when the other party has suffered serious damage by his conduct;11 that his election to ratify is final, and that he cannot ratify in part and rescind in part;12 and that ratification may be by conduct.13 We have further seen that when there is a part performance, and prevention on the other side, the party partially performing may recover on a quantum meruit for what he has done.14 It should now be noticed in addition that a contract will not in general be rescinded on Average correspondence with sample is enough.

Warranty may be added to sample.

On nonperformance of condition precedent contract may be rescinded.

1 Messmore V. Shot Co., 40 N. Y. 422; Gill V. Kauffman, 16 Kan. 571.

2 Merriman V. Chapman, 32 Conn. 146.

3 Leonard V. Fowler, 44 N. Y. 289; see supra, sec 225.

4 Schnitzer V. Print Works, 114 Mass. 123.

5 Mody V. Gregson, L. R. 4 Ex. 49.

6 Heilbutt V. Hickson, L. R. 7 C. P.

438. But see Dickinson V. Gay, 7 Allen, 34; and supra, sec 225.

7 Supra, sec 225, 914.

8 Supra, sec 282.

9 Supra, sec 282, 293. 10 Supra, sec 285. 11 Supra, sec 286. 12 Supra, sec 290. 13 Supra, sec 288.

14 Supra, sec 579, 712.

2S1 the application of one party on the ground of non-performance by the other party, unless the party claiming relief does equity by putting the other party as far as possible in the position he would have been in had the contract not been executed.1 Thus, a sale of real estate, after conveyance, cannot be rescinded without reconveyance;2 nor can the purchaser of a chattel rescind the sale without tendering it, if it have any value, to the vendor.3 But where the vendor, on an executory sale of chattels, has delivered, and the vendee has received, a part of the aggregate to be delivered, and the vendor then makes default as to the remainder, which remainder is susceptible of accurate liquidation, the vendee may rescind the contract, and recover back the corresponding portion of the purchase-money.4 Subject to these qualifications, whenever "one party to a contract refuses to execute any substantial part of the agreement, he thereby gives to the other party the option to rescind the entire contract."5 A party, also, who prevents the performance of a condition by the other party, or waives the performance, cannot complain of the nonperformance.6 When one party, also, is prevented from performance by casus, the other may rescind.7 But the right to rescind must be exercised within reasonable time, though mere lapse of time does not estop, unless there be laches.8.

1 Hunt V. Silk, 5 East, 449; Clough V. R. R., L. R. 7 Ex. 26; Fitt V. Cas-sanet, 4 M. & G. 898; Lyon V. Bertram, 20 How. U. S. 149; Potter V. Titcomb, 22 Me. 300; Cook V. Gilman, 34 N. H. 556; Hammond V. Buckmaster, 22 Vt. 375; Conner V. Henderson, 15 Mass. 319; Thayer V. Turner, 8 Met. (Mass.) 550; Bartlett V. Drake, 100 Mass. 176; Burton V. Stewart, 3 Wend. 236; Johnson V. Titus, 2 Hill, 606; Pittsburg Turnpike Co. V. Com., 2 Watts, 433; Babcock V. Case, 61 Penn. St. 427; Morrow V. Rees, 69 Penn. St. 368; Benson V. Cowell, 52 Iowa, 137.

2 Tisdale V. Buokmore, 33 Me. 461; Perley V. Balch, 23 Pick. 283; Pearsoll V. Chapin, 44 Penn. St. 9; and cases cited supra, sec 285 et seq.

3 Tisdale V. Buckmore, 33 Me. 461; Getchell V. Chase, 37 N. H. 110; Perley V. Balch, 23 Pick. 282; Dorr V. Fisher, 1 Cush. 271.

4 Hill V. Reeve, 11 Met. 288; citing Johnson V. Johnson, 3 B. & P. 162; Miner V. Bradley, 22 Pick. 457; Hay-den V. Reynolds, 54 Iowa, 157.

5 Bell, J., Webb V. Stone, 24 N. H. 288; and see to same effect, supra, sec 263, 579, 712.

6 Supra, sec 602 et seq.

7 Supra, sec 323.

8 Supra, sec 289; De Bussche V. Alt, L. R. 8 Ch. D. 314; Towers V. Barrett, 1 T. R. 136; Hodgson V. Davies, 2 Camp. 530; Veazie V. Williams, 3 Story, 612; Pence V. Langdon, 99 U. S. 581; Webb V. Stone, 24 N. H. 282;.

Whether there has been undue delay is a question in part of law and in part of fact to be decided by the jury under the direction of the court.1 But there can be no rescission on a mere qualified refusal on the other side to perform.2

Getchell V. Chase, 37 N. H. 110; Gates V. Bliss, 43 Vt. 299; Saratoga R. R. V. Row, 24 Wend. 74; Masson V. Bovet, 1 Denio, 69; Relf V. Eberly, 23 Iowa, 467.

1 Kingsley V. Wallis, 14 Me. 57; Holbrook V. Burt, 22 Pick. 546.

2 Davison V. Jersey Co., 71 N. Y. 333.