I am dissenting in this case on the theory that the contract between Niederhauser and the Jackson Dairy Company contemplated that the milk should be taken by the latter during the term named in the contract so long as the same was duly tested. If in any interim there was not a proper test, then the Dairy Company was not required to receive the milk. But when the proper test was made, then Niederhauser could require the Dairy Company to again take the milk. Upon that basis, there was no ground for a rescission. Hence the contract at all times remained in existence, and when the Dairy Company failed to receive the milk after the test, a breach of contract arose, and Niederhauser is entitled to damages accordingly.
ALBERT, J., joins in this dissent.