It appears by the moving papers that the defendant has taken the position of business rival of the plaintiffs in the sale of magnolia metal in territory reserved to the latter by the contract of February 16, 1894, and is striving to divert their business by the issuance of circulars, employment of agents, etc. These acts the court below has declined to interfere with. In order to determine whether the decision is correct, it is necessary to decide whether the plaintiffs have lost the exclusive right to the business built .up by themselves by non-compliance with their contract.
That the plaintiffs did, in fact, break their contract by a wrongful refusal to receive and pay for the metal they had agreed to purchase, is now conceded. It is said, however, that the defendant did not elect to rescind the contract when the breach occurred, but, on the contrary, chose to keep it alive. That seems to be true. The action of the defendant in retaining the $36,000 of advances, which it had received under the contract, but for which it had given no equivalent, is not consistent with an intention to disaffirm. If the defendant did not intend to furnish the rest of the metal, it had no *292right to keep this sum, which was part of the purchase price thereof. It is probable, therefore, that the plaintiffs would have been, hut for their own action, in a position to claim their rights under the contract — at least their right to the business built up by them — as. long as the defendant retained the advance payments.
But they destroyed this right when they assigned to Lawlor their claim to the $36,000. That was a binding election to regard the contract as rescinded. This money belonged to the plaintiffs only in the event of the contract being wholly terminated, so that nothing more was to be done under it. If the contract was to be carried out further and the remaining shipments made, then the money did not belong to the plaintiffs, and the defendant was entitled to its possession even before the rest of the metal should be shipped. The plaintiffs were to become entitled to the English business only by paying for the whole 3,000,000 pounds of metal. So far from doing this they have sought to recover, or at least have transferred to another all their right to recover, part of the very money which the contract provided as a consideration for the acquisition of that business. It is plain that they thereby .made a binding election, which deprived them of their right to the same.
It is claimed that the plaintiffs offered unconditionally to perform the contract before February 28, 1896, and at a date prior, so far as the record shows, to the assignment to Lawlor. In fact, however, there is no prior offer which can be regarded as an unconditional tender of performance. But if it were otherwise, the Lawlor suit operated as a withdrawal of any such offer, and pledged the plaintiffs to a different line of conduct, defining for them, as it did, a different attitude.
The order should he affirmed, with costs.
Present — Barrett, Rumsey, Patterson and Ingraham, JJ.
Order affirmed, with costs.