Respondents had no cause of action when they sued and commenced their action prematurely, as the trial court held. The findings quoted, excepting findings X and XI (the first of which is a conclusion and not a finding), all sustain relief for appellant.
With a very substantial part of the contract unperformed, respondents unjustifiably sued. Until then, appellant had been seeking, and respondents promising, performance. Notice of rescission, prior to that act of respondents, on the part of appellant would certainly have been "premature" and uncalled for. When suit against appellant was prematurely started, the first opportunity was presented to claim rescission.
The expenditure of several hundred dollars by the sales company in installing the set in appellant's plant, constituted nothing more than bona fide efforts to substantially perform the contract, which finally failed. Consent on the part of appellant to that effort was but consent to performance of the contract, and not conduct inconsistent therewith. *Page 635
This is not a case where the discretion of the trial judge will not be disturbed under the ordinary rule. This is a case where the trial judge sat as a chancellor, made certain findings and judgment, and we, as the appellate court, sit also as chancellors and try the case de novo.
Although, on first consideration I was disposed to the result reached by the majority, on more careful and attentive study, I am unable to concur. I therefore dissent.