Further, in order to exercise his right to rescind a contract, an injured party must indicate his election so to do by positive action71 but if he only wishes to refrain from performing his part of the contract, he is not seeking to assert an affirmative right, but standing on the defensive. He need do nothing except refrain from performing or receiving performance until he sues or is sued, when he should plead the cause which justifies his non-performance.72 Of course he may by manifesting an election to continue the contract deprive himself of this justification, but positive action on his part is necessary to bring this about.73
Metal Co., 182 111. 128, 54 N. E. 1050;
Riley v. Walker, 6 Ind. App. 622, 34
N. E. 100; Morris v. Globe Refining Co., 22 Ky. L. Rep. 911, 59 S. W. Rep.
12; Lowe v. Harwood, 139 Mass. 133, 22 N. E. 538; Lee v. Briggs, 99 Mich.
487, 58 N. W. 477; Armstrong v. St.
Paul 6c. Co., 48 Minn. 113, 49 N. W.
233, 50 N. W. 1029; Berthold v. St.
Louis Construction Co., 165 Mo. 280, 65 S. W. 784; Brasell v. Conn, 32
Mont. 556, 81 Pac. 339; Vickers v.
Efeetrosone Commercial Co., 67 N.
J. L. 665, 52 Atl. 467; Wharton v.
Winch, 140 N. Y. 287, 35 N. E. 589;
Reynolds v. Reynolds, 48 Hun, 142;
Davis p. Tubbs, 7 S. Dak. 488, 64 N.
W. 534; El Paso Ac. R. Co. t>. Eichel (Tex. Civ. App.), 130 S. W. 922;
Young v. Watson (Tex. Civ. App.), 140 S. W. 840.
Another instance of the confusion of ideas due to the improper use of words here criticised may be found in Fox v. Kitton, 19 HI. 519, where the court says that there is no conflict between the views of Parke, B and the decision of Hochster v. De La Tour, 2 E. & B. 678, since Parke, B., said in Phillpotts v. Evans, 5 M. & W. 475, 477: "The notice (that he will not receive the wheat) amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the meantime and rescinds the contract." This, the Illinois court adds, "is in strict accordance with the principles recognised in ... . Hochster v. De La Tour." Now Parke was usiig the word "rescinds" in its true sense. What he meant and what he said was that the seller might at his option terminate the contract. The Illinois court thought he was using the word in the improper way in which Lord Cockburn did, and that his meaning was that the seller might, without himself performing, so act as to entitle himself to sue the buyer immediately for breach of the contract - a doctrine Parke expressly denied both in Phillpotts v. Evans, and Ripley v. M'Clure, 4 Ex. 345, 359. The mistake made in Fox v. Kitton is repeated in Kadish v. Young, 108 01. 170, 48 Am. Rep. 548.
68Wender Ac. Co. v. Louisville Ac. Co., 137 Ky. 339, 125 S. W. 732; Spetton v. Goodman, 194 Mass. 389, 80 N. E. 608; R H. White Co. v. Remick, 198 Mass. 41, 84 N. E. 113.
69Leavitt v. Fletcher, 10 Allen, 119.
70 See further in regard to leases, supra, Sec.Sec. 890-892.
71 See infra, Sec. 1469.