#### H. D. Smith & Company, Appellant, v. Aurora Automatic Machinery Company, Appellee.

Gen. No. 22,315.

(Not to be reported in full.)

Abstract of the Decision.

Sales, § 334 * —when seller in default preventing recovery by Mm,. In an action to recover on a contract for the delivery by plaintiff to defendant of a quantity of “crank forgings," the following facts appeared: Defendant attempted to cancel the order, but plaintiff refused, and threatened to send and did send the matter to its attorney. Defendant later decided to perform the contract and requested plaintiff to ship the goods as originally agreed, which called for payment in sixty days. Plaintiff refused to ship the goods unless $1,500 was paid in advance, whereupon defendant then can*607celed the contract. Held, that plaintiff was primarily in default in refusing to carry out the contract as made and in attempting to impose new conditions, and was without remedy for the damage sustained, although had it acted on defendant’s first attempted cancellation it might have recovered damages suffered by that breach.

*606Appeal from the Municipal Cpurt of Chicago; the Hon. William N. Gemmill, Judge, presiding. , Heard in this court at the March term, 1916.

Affirmed.

Opinion filed October 30, 1916.

Statement of the Case.

Action by H. D. Smith & Company, a corporation, plaintiff, against the Aurora Automatic Machinery Company, a corporation, defendant, in the Municipal Court of Chicago, to recover for breach of a contract for the delivery by plaintiff to defendant of a quantity of “crank forgings.” From a judgment of nil capiat, plaintiff appeals.

Charles B. Haefenberg, for appellant; William Friedman, of counsel.

Montgomery; Hart, Smith & Steers, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Holdom

delivered the opinion of the court.