Plaintiff- is an importer of crude rubber. Defendant is a manufacturer. July 19, 1912, plaintiff and defendant entered into an agreement for the sale and purchase of “ about 15 tons prime thin disc Manicoba rubber at $1.00 per pound.” The rubber was to be delivered about five tons each month, in September, October and November. To meet this contract plaintiff bought the necessary amount of rubber “ to arrive.” The parties had dealt for several years under similar contracts. In August plaintiff delivered about five tons of rubber under this contract, and defendant paid $11,120, the full price. After this lot had been delivered and paid for, defendant objected to the quality of a portion of it, and plaintiff took back 7,964 pounds. It delivered in place thereof 6,204 pounds, which defendant accepted, but refused to accept 1,768 pounds which plaintiff offered to deliver to make up the amount which had been taken back.
Plaintiff had imported and held in warehouse a sufficient quantity of rubber, claimed to be of the proper quality, to complete the contract. The price of this grade of rubber began to fall after September first, and defendant began to interpose difficulties as to the acceptance of rubber. I think that it is fairly established by the evidence that the custom between the parties on the delivery of rubber under similar contracts was, that a broker should examine the rubber on dock or in warehouse and, 'if he found it of the proper quality, defendant accepted warehouse receipts, subject apparently to the right to reject or claim allowance if when rubber arrived in the factory it failed to come up to sample.
*479The complaint was originally framed on the theory that plaintiff had tendered full performance, which defendant had refused. It was amended, however, so as also to allege an anticipatory breach on defendant’s part, and it is upon this theory that plaintiff has recovered. The difficulty with standing upon tender of performance was that while plaintiff had made several written tenders, it had so qualified them that an acceptance of warehouse receipts would have precluded defendant from making any claim if, on examination in the factory, the rubber had proven to be deficient in quality.
The anticipatory breach was founded upon the claim that defendant had insisted upon importing two new terms into the contract and refused to fulfill unless these were- complied with. One was that there should be a laboratory test before delivery, and the other that the rubber delivered should be “ round thin discs. ”
The court left it to the jury to say whether the defendant had so insisted, and if so whether it was a refusal to fulfill the contract according to its terms. No fault is found with the charge, and there is evidence to sustain the jury’s finding on these questions in favor of plaintiff.
Assuming the facts to be rightly found, there was a clear anticipatory breach, for the refusal of a party to complete a contract, except upon new terms not included in the original contract, is equivalent to a refusal to complete at all.
The defendant, however, invokes the rule that while an anticipatory breach will entitle the party against whom it is made to sue at once for damages without tendering performance, still, in order to do so he must elect to consider the contract as broken; and it urges that plaintiff’s repeated tenders of performance are conclusive evidence that it did not so elect.
We do not so understand the rule. It is true that in order to sue upon an anticipatory breach, the party suing must elect to consider the contract as terminated by the breach, but there is no particular time within which he must make that election; and an offer, or repeated offers, to complete on the contract terms, or on modified terms, unless accepted by the vendee, does not constitute a waiver of the breach. (Canda v.
*480Wick, 100 N. Y. 127; Poel v. Brunswick-Balke-Collender Co., 159 App. Div. 365.)
The judgment and order appealed from should be affirmed, with costs.
Laughlin, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.