It was agreed at the trial that the findings of ■ the auditor, whose report forms part of the bill of exceptions, should be final upon questions of fact. After reciting these findings he thereupon ruled and reported that the plaintiff had failed to prove his title to the claim in suit, but if this ruling was wrong, he further ruled, that the defendants under their answer in recoupment had suffered damages in a larger sum than the plaintiff claimed, and found in their favor. The rulings refused asked for a reversal of the report of the auditor, whose rulings the plaintiff contends cannot be sustained on the facts reported.
We first consider the question of recoupment which comprises the merits of the controversy. The original contract contained no provision that the bottles should be made by union workmen, although the defendants subsequently insisted that there had been a preliminary understanding to this effect. In consequence of their assertion of this claim, and as a result of correspondence between the parties, a duly authorized agent of the plaintiff’s assignor indorsed upon the face of the contract that “ bottles called for on this contract are to be made by union workmen or this contract cancelled.” This indorsement must be deemed an additional agreement to be treated as a modification of the existing contract, which as thus modified is supported by the original consideration. Thomas v. Barnes, 156 Mass. 581. Drew v. Wiswall, 183 Mass. 554, 556. Taylor v. Finnigan, 189 Mass. 568, 574, 575.
The contract as finally completed being limited to bottles of this description, it was undisputed that after repeated demands such bottles were not furnished, and the vendor informed the defendants that compliance was impossible. In reply to a suggestion that they cancel the contract, the defendants, while recognizing their right of termination, promptly declined to exercise it, and insisted upon performance, with a further claim for damages already suffered by reason of the failure to deliver the goods for which they had bargained. Hubbardston Lumber Co. v. Bates, 31 Mich. 158, 169. .They also directed that their moulds, which had been in the possession of the vendor, should be transferred to another manufacturer, and this transfer was made accordingly. It is plain that this failure to comply with the contract was the cause of its abandonment by the defendants, upon whom by *192reason of an inexcusable breach the right of termination was conferred. Eastern Forge Co. v. Corbin, 182 Mass. 590, 592; and cases cited. By its refusal to perform the vendor could not make an unjustifiable act a justification by which it could escape liability for damages which thereby resulted, as the option of cancellation was for the sole benefit of the vendee whose right to abandon did not arise until the breach. Hapgood v. Shaw, 105 Mass. 276, 280. National Machine & Tool Co. v. Standard Shoe Machinery Co. 181 Mass. 275. Meagher v. Hoyle, 173 Mass. 577, 579. The right of one party to a contract of sale to be excused from further performance where the other party has absolutely refused to perform is distinct from a right to rescind, as upon such refusal the innocent party has the right to recover damages for the injury suffered, but if rescission has taken place the contract then ceases to exist, and not even nominal damages can be recovered. Whiteside v. Brawley, 152 Mass. 133, 134. Speirs v. Union Drop Forge Co. 180 Mass. 87,92. For this reason when the vendor refused to perform, the defendants not only became entitled to recover such damages as had been caused by the breach, but were excused from further performance upon their part. Hapgood v. Shaw, ubi supra. National Machine & Tool Co. v. Standard Shoe Machinery Co., ubi supra. United States v. Peck, 102 U. S. 64. The sum which the defendants were entitled to recover, although not stated, has been found to be in excess of the amount due for bottles delivered before the contract was abandoned, and, because the vendor could not recover, the plaintiff as its assignee is barred, for he succeeded to the same infirmity. R. L. c. 173, § 4. Andrews v. Tuttle-Smith Co. 191 Mass. 461. If an absolute refusal to perform had not been shown, and it appeared that the vendor in good faith was endeavoring to carry out the contract, a different question would be presented. Collins v. Delaporte, 115 Mass. 159, 162.
The order transferring the moulds could not be deemed a breach by the defendants which destroyed their right to damages, as it was not given until the vendor had notified them of its inability to fulfil the contract. Upon receiving this information they were riot required to allow the moulds to remain, but were at liberty to use them in such manner as they considered the prosecution of their business demanded. Minckley v. Pittsburgh *193Bessemer Steel Co. 121 U. S. 264. Rogers v. Union Stone Co. 134 Mass. 31, 38. The rulings requested but not given on this branch of the case, therefore, were refused properly.
As the plaintiff’s assignor could recover nothing, the further question in regard to the validity of the assignment under which the plaintiff claims title becomes immaterial. See England v. Dearborn, 141 Mass. 590; New England Ins. Co. v. Wing, 191 Mass. 192. Compare Hamilton v. McLaughlin, 145 Mass. 20, 22, Williamsburg Ins. Co. v. Frothingham, 122 Mass. 391, 394, and Murphy v. Welch, 128 Mass. 489, 491.
Exceptions overruled.