Broadway Automobile Co., 65 Wash. 650, 118 Pac. 817, 37 L. R. A. (N. 8.) 71.

90 See supra, Sec.736.

91 Tanner Engine Co. v. Hall, 89 Ala. 628, 7 So. 187; Montgomery Iron Works v. Smith, 08 Ala. 664, 13 So. 525; Fuller v. Eames, 108 Ala. 464, 19 So. 366; Albright v. Meredith, 58 Ohio St. 194, 50 N. E. 719. But in Champenois v. Tinsley, 90 Miss. 38, 42 So. 89, it was held that the acceptance by the seller of a mortgage by the buyer of the goods. conditionally sold did not waive the title reserved in a prior conditional sale* See also Cutting 0. Whittemore, 72 N. H. 107, 110, 54 Atl. 1098; Kirch v. La Tourette, 91 N. J. L. 35, 102 Atl. 873.

92 Libby v. Cushman, 29 Me. 429; Whitney 0. Farrar, 51 Me. 418; Evans v. Warren, 122 Mass. 303; Dyckman v. Sevatson, 39 Minn. 132, 30 N. W. 73; Haynes v. Sanborn, 45 N. H. 429. But see 7 Cyc. 55.

of executory bilateral contracts. If a party to such a contract is guilty of a material breach! the other party may elect to rescind it. Courts have sometimes endeavored to make out mutual assent by calling the breach or repudiation of the wrongdoer in such a case an offer to rescind; but this is an obvious fiction. In truth, the wrongdoer is under an obligation to permit the rescission of the contract, and the injured party is allowed to enforce the obligation by treating the contract as rescinded without the aid of a court.93 Finally, the most striking analogy exists in the rule universally prevailing in the United States, that one who is under a unilateral obligation to transfer chattel property to another may by proper tender of the chattels discharge his own obligation, and in effect make the creditor the owner of them.94