(dissenting)—The quality of the goods involved in this case could be determined only by actual test. When they were put to this, it was found that they were deficient in quality. But whether they were in fact unfit for the uses intended became immaterial, as will be made to appear. The fact that the goods were inferior in quality was immediately called to the attention of appellant, and the subsequent correspondence between the parties shows that respondent did not continue to use the goods intending to rescind, but did so at the request of appellant and under an assurance that in the end it would be found that the breakage did not exceed five per cent. Under such circumstances respondent had a right to use the stock. Finally, after a fair test, respondent notified appellant that it still found
<£the percentage to be very much greater than we can stand. We cannot see our way clear to accept the shipment at the face of the invoice. If you can arrange to have some one take the remaining stock off our hands, please do so, and send us shipping instructions and then we will arrange for the loading and shipping to whom you want sent.”
After some correspondence as to the amount of the stock that had been used, respondent proposed to replace enough to make up a carload, and to ship it subject to appellant’s order. It was finally agreed that the differences between the parties would be settled by respondent shipping to appel*468lant’s order at Aberdeen a carload of stock. Under date September 16, appellant wrote as follows:
“In further reference to our favor of the 6th inst., wish you would either ship us a carload of hoops and liners . . . or send us your check in full as per the invoice we sent you. Also let us know by return mail as to what you are going to do, so we can govern ourselves accordingly. Ship the car to W. K. Noble, at Aberdeen, Washington.”
On September 26, respondent notified appellant that it had made a rush order for a car from the east, and that the car had been forwarded on September 20 from some place in Michigan. Notwithstanding this offer and its acceptance, appellant wrote respondent on October 2, saying:
“I have your favor of the 26th, and our customer at Aberdeen cannot wait indefinitely for his shipment of hoops, and our account, we think', can be collected very easily.”
And on October 14 appellant wrote, saying:
“I have your favor of the 8th, and our customer at Aberdeen could not wait any longer for the stock, and we had to make prompt shipment or lose his order, and his car has now gone forward. We would have taken this stock if we could have gotten it promptly. But to wait on your car to arrive from the east and when it might be on the road three or four weeks would be an injustice to our customer.”
The fact that appellant, agreeably to the understanding had between the parties, had shipped a car on September 20, gives the lie to the assertion of appellant that his customer at Aberdeen could not wait for an indefinite time, or until a car might arrive from the east. The record shows that, whether the goods were shipped by appellant or by respondent, they had to be ordered in the east, and to a minority of this court, at least, it seems more reasonable to suppose that a car leaving Michigan on September 20 would reach Aberdeen before a car leaving Indiana some time in October would arrive at the same destination.
The crux of this case lies in this: After due trial at the solicitation of appellant, the goods were found to be unfit. *469Thereafter a new contract was entered into, and when respondent had entered upon its performance in good faith, appellant repudiated it. Not only repudiated it, but did so in bad faith; for on respondent’s letter of the 26th of September, we find a notation which was carried into the letter of October 2d quoted above: “our account can be collected very easily.”' So, after all, it may be plainly seen that the financial responsibility of the respondent was the temptation which moved appellant to his repudiation and is the inspiration of this lawsuit. The law of rescission is in no sense involved. That question was eliminated, if it was ever in the case, by the subsequent agreement of the parties, and all instructions; or the refusal of the court to give instructions on the subject of rescission, would be immaterial error, for the court instructed not only upon appellant’s theory, but upon the case as we have outlined it, and the jury has found, under proper instructions,' that appellant was at fault. That being so, respondent was liable for that part of the stock which it had used while negotiations for a settlement were pending, and no more. The verdict of the jury should stand.
Duhbab,, C. J., and Gose, J., concur with Chadwick, J.