“Earnest,” says Kent, (2 Kent’s Com. 4th ed. 494 and 495,) “ is one mode of binding the bargain, and giving *317to the buyer a right to the goods upon payment; and if he does not come in a reasonable time after request, and pay for and take the goods, the contract is dissolved, and the vendor is at liberty to sell the goods to another.” It was held in Niel v. Cheves, (1 Bailey’s S. C. Rep. 537,) that if time atid place for delivery be appointed, and the purchaser does 'nbt attend, or offer to pay, the vendor may rescind the contract, even though he had previously received part of the purchase money.
The referee has found, in this case, that the plaintiffs did not offer to pay the balance due for the sheep within the time allowed by the contract, and that they did not demand the $50 of the defendant which they had paid him towards the sheep; also, that the defendant did not sell the sheep until the time had expired within which the plaintiffs were to take them and pay the balance they had agreed to pay therefor.
If the defendant had desired to keep the contract good, he should have given the plaintiffs notice that he should sell the sheep, if they did not take them and pay what remained due for them by a certain time, and look to the plaintiffs for any deficiency in the price they agreed to pay him therefor, which they should bring, by way of damages, for the plaintiffs’ breach of the contract. (1 Sandf. S. C. Rep. 297.) When the defendant sold the sheep, without giving such notice to the plaintiffs, he rescinded the contract in toto, and lost all right of action against the plaintiffs for their breach of it, and became liable to refund to them the $50 he had received on it. This principle was settled in this state in Raymond v. Bearnard, (12 John. 274,) in the year 1815, and it has not since been departed from. That case also determines the question that it was unnecessary for the plaintiffs to demand the $50 of the defendant, before bringing their action to recover it back. (Also see 5 Hill, 107; 14 N. Y. R. 492.) . It is therefore clear that the plaintiffs were entitled to recover the $50 they paid towards the sheep, with interest thereon from the time the defendant rescinded the contract; but they *318were not entitled to recover any damages of the defendant for his rescission of the contract, because they did not fulfill it themselves, by reason of their omission to call on the defendant for the sheep and offer to pay him what was due therefor, within the time fixed by the contract. The judgment in the action should be reversed, and a new trial granted; costs to abide the event.
Mason, J. concurred in the above opinion.
Campbell, J. As far back as the case of De Fonclear v. Shottenkirk, (3 John. 170,) Mr. Justice Spencer thus clearly defines a contract of the character of the one in this case: “Independently of the statute, any words importing a bargain, whereby the owner of a chattel signifies his willingness and consent to sell, and whereby another person shall signify his willingness and consent to buy in prcesenti, for a specified price, would be a sale and transfer of the right to the chattel.”
In this case, fifty dollars, part of the purchase price, was paid at the time of making the bargain. The whole facts and circumstances show an absolute and unconditional sale. The title to the sheep vested in the vendees. The vendor retaining possession had a lien for the unpaid purchase money. There were no conditions attached to the sale. It was not stipulated that the vendees could have the sheep, provided they approved of it within a certain time and paid the balance of the purchase price. The sale was in prcesenti, the delivery to take place at a future day, on receipt of the balance of the purchase money. It is said that if a time and place be appointed for payment, and the buyer do not attend at such time and place, the seller may also resell, although earnest be given. (Story on Cont. § 788.) In this case it was not earnest money merely : it was part payment—the sum paid amounting to more than one fourth of the whole purchase price. Still the vendor, under his lien, might have proceeded and resold the property, on giving notice to the vendees, and at their risk and charge; or he might have sued for the un*319paid purchase money, if the vendees had refused to accept the sheep and pay therefor. The vendor did neither. Without notice to the vendees, he undertook arbitrarily to rescind the contract, and without notice proceeded to sell the sheep to third parties, at a price which does not appear; and refused even to return the fifty dollars, part payment.
[Chenango General Term, May 10, 1859.Mason, Balcom and Campbell, Justices.]
There must he a new trial; costs to abide the event.
Decision accordingly. Order of reference to stand; but either party to have liberty to apply for the appointment of a new referee.