ON REHEARING
The plaintiff-appellant has filed a motion for rehearing which has been granted for a rehearing on the briefs only. The court has thus given further consideration to the issues raised and has filed this Opinion on Rehearing.
By petition for rehearing, the plaintiff has strongly urged that in our previous consideration we did not treat the provisions in the contract relating to notice for termination of the agreement. These provisions, however, never became operative by reason of the rescission of the contract as discussed in the original opinion, and the point was not therein mentioned.
Under the applicable section of the Uniform Sales Act as adopted by Colorado, which was section 155-2-612, Colo.Rev.Stat.1963, it was provided that the circumstances would determine whether an “injured” party need proceed further under an installment contract. The trial court made a finding of fact in part as follows:
“The Court further finds that plaintiff’s financial condition was such that it would have been a useless act, for on September 12, 1963, five days before *639the stop order on further shipments was made by the defendant, the plaintiff had issued its cheek to the defendant for $1,848.15, which was returned marked ‘insufficient funds.’ ”
Under the trial court’s findings it is apparent that the seller was justified in so withholding further performance on September 17,1963, until some solution could be reached for the previous failure of plaintiff to pay. See the official comment under the present Uniform Commercial Code at 155-2-612 C.R.S.1963, as well as the express provisions of the Uniform Sales Act formerly 121-1-45, C.R.S.1963. This solution was sought by the parties in their conference, and was agreed upon at the meeting of October 3, 1963, when the contract was mutually rescinded. This rescission thus came before either party had taken any formal action to terminate the contract or to seek other remedies. Under these circumstances the contract provisions permitting termination of the contract after notice never became operative. The termination of shipments on September 17, 1963, and the meeting of the parties at which the mutual rescission was agreed upon were really both part of the same transaction — the mutual termination of the relationship.
The plaintiff in its motion and authorities for rehearing cites Carleno Coal Sales, Inc. v. Ramsay Coal Co., 129 Colo. 393, 270 P.2d 755, where the court considered the importance of notice provisions prior to contract termination or other remedies in an agency contract, and Northwest Water Corp. v. City of Westminster, 164 Colo. 61, 432 P.2d 757, where the Colorado court again considered notice provisions relating to contract termination. The point as to notice the plaintiff argues is not pertinent to the issues, and the above cited cases are not applicable to the facts in this case where there was no contract termination other than by the mutual rescission.
Affirmed.