#### Chicago Washed Coal Company, Appellant, v. R. C. Whitsett and A. H. Whitsett, copartners, trading as R. C. Whitsett Coal & Mining Company, Appellees.

Gen. No. 21,663.

(Not to be reported in full.)

Abstract of the Decision.

Sales, § 364 * —when party in default may not maintain action for breach of contract. Where the plaintiff, after notice to it by the defendants that tbe latter would make no further shipments of coal under a contract between the parties, notified the defendants that it would insist that the shipments be made as agreed, but failed to pay, at the time agreed, for coal already shipped or to offer to make payment by setting off its damages resulting from the defendants’ breach, held that as it had elected to keep the contract alive and was itself in default, it could not recover for the defendants’ breach.

Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Affirmed.

Opinion filed October 10, 1916.

Rehearing denied October 23, 1916.

Statement of the Case.

Action by the Chicago Washed Coal Company, a corporation, plaintiff, against R. C. Whitsett and A. H. Whitsett, copartners, trading as R. C. Whitsett Coal & Mining Company, defendants, for breach of contract to deliver coal. From a judgment for defendants, plaintiff appeals.

George C. Otto, for appellant.

Pomeroy & Martin, for appellee R. C. Whitsett.

*

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

Mr. Justice McDonald

delivered the opinion of the court.