On the other hand, many courts of equal authority with those heretofore referred to have announced and enforced the rule "that the failure of either party to perform an essential term of the contract gives to the other the right to rescind," or refuse thereafter further to perform the contract. Such is the holding of the Supreme Court of the United States, Norrington v. Wright, 115 U. S., 188; Cleveland Rolling Mills v. Rhodes, 121 U. S., 205; New York, Pope v. Porter, 102 N. Y., 366; Winchester v. Scott, 114 N. Y., 640; Kokomo Strawboard Co. v. Inman, 134 N. Y., 92; Illinois, Bradley v. King, 44 Ill., 339; George H. Hess Co. v. Dawson, 149 Ill., 139; Rhode Island, King Phillips Mills v. Slater, 34 Am. Rep., 603; Providence Coal Co. v. Coxe, 35 Atl. R., 210; Pennsylvania, Rug v. Moore, 110 Pa. St., 236, citing and distinguishing Scott v. Kittanning Coal Co., 33 Am. Rep., 753, which is often cited as opposed; Maryland, McGrath v. Gegner, 39 Am. St., 415; Curtis v. Gibney, 59 Md. 131; Massachusetts, Stephenson v. Cady, 117 Mass., 6, in which case it was held that when executory contracts are made on different days for the sale of goods, the price of which is to be payable on delivery, and the deliveries under the second contract are by its terms to commence when the full quantity required by the first has been shipped, the purchaser can not, after refusing to pay for goods delivered under the first, unless the seller will give security for the entire fulfillment of the contracts, maintain an action for non-delivery under the second contract. See also, Stokes v. Barrs, 18 Fla., 656; Robson v. Bohn, 27 Minn., 333; Branch v. Palmer, 65 Ga., 210; Fletcher v. Cole, 23 Vt., 114-119; Haines v. Tucker, 50 N. H., 307; Durnel v. Howard, 30 Me., 258. These last cases are cited and relied upon as sustaining the rule last above stated, but the writer has had no opportunity to examine the cases themselves in any official report. Coffinberry v. The Sun Oil Company, 68 O. S., 488, distinctly recognizes the principles upon which these cases are decided. It is suggested in the case of Norrington v. Wright, 115 U. S., 188, that the rule announced in Mersey Steel Co. v. Naylor "is applicable only to the case of the buyer to pay for and not that of a seller to deliver" installments and the inference to be Supply Co. v. Cement Co. [Vol. IV, N. S. drawn from the suggestion is that a different rule applies to a buyer in default than to a seller in the same situation. The suggestion referred to was obiter the case of Norrington v. Wright, and the cases do not lend support to the inference; see Benjamin on Sales, Section 593a; Kokomo Strawboard Co. v. Inman, 134 N. Y., 92; George H. Hess v. Dawson, 149 Ill., 138; Rugg v. Moore, 113 Pa. St., 236; Stephenson v. Cady, 117 Mass., 6, and McGrath v. Gegner, 39 Am. St., 415, are all cases in which the buyer made default and it was held that the seller was thereby released from the duty to make further performance, and in none of these cases is it held or suggested that the result of a default of the buyer is other or different from that of a default of a seller. In view of all the cases, and after a careful and critical review of them, Mecham in his recent and valuable work on Sales, at Section 1148, says: "Though the cases are not in harmony, this view that the failure of either party to perform an essential term of the contract gives to the other the right to rescind that contract is sustained by the clear weight of American authority.” In the New Jersey case heretofore cited, 51 Am. St., 611, Van Syckle, J., dissented and wrote a dissenting opinion, maintaining that for the seller's default in delivering one installment the buyer could refuse further performance. The learned editor of the American State Reports, at page 615, says: "We entertain no doubt that the dissenting opinion is well supported by authorities, and sustained by reason." The consequences of the prevailing opinion were thus described by the dissenting judge: "Under the rule of which the judgment below is based, if there is a contract for twelve successive monthly deliveries, the vendor may refuse to make eleven of the deliveries as the due days arrive, and still hold the vendee to the acceptance of the twelfth delivery. Such a doctrine will be startling to the business community. It needs no discussion to show, that in those pursuits where supplies are essential to the employment of labor, no business enterprise can be conducted with safety or success under such a rule. A contract for goods in installments is hereby perverted into an agreement to engage in a series of law suits, if the vendor so elects, for such damages as the purchaser may be able to recover, as a substitute for what he expressively bargains for, and during all this period the purchaser can not safely secure his needed supplies elsewhere, because he can not know until the due days arrive whether the vendor will make further default. The injustice of such an exposition of the law is even more conspicuous when we consider that in many cases the purchaser will be compelled to seek redress in the courts of another state or in those of a foreign country." If the seller ready to perform is not released at his option from further performance upon failure of the buyer to make his payments as agreed, an equal injustice will be done the former and an unexpected hardship visited upon him without any fault whatever upon his part. This seller was a manufacturer of cement. The seller had stipulated for payments within ten days of each delivery. It was not bound by any contract duty to extend a further time of credit nor assume the risks incident thereto. It had the right to rely upon the prompt payment of the installments to supply the necessary funds to continue its manufacture. Having thus arranged for funds, it was not bound to look elsewhere for its supply. It was not bound to enlarge investment by using its own funds or borrowing funds in order that the buyer might continue to make default or to remain in default. It was not bound to accept a chose in action when cash was promised. "In mercantile contracts time is generally of essence," and this is particularly true in contracts for the manufacture and sale of goods (Howes v. Shand, 2 App. Cas., 455; Jones v. U. S., 96 U. S., 24; Norrington v. Wright and Cleveland Rolling Mills Co. v. Rhodes, ubi supra; Camden Iron Works v. Fox, 34 Fed. Rep., 200; Scarlett v. Stein, 40 Md., 512; Cromwell v. Wilkinson, 18 Ind., 365. While time of payment is not generally of essence, we have seen that in contracts such as the one under consideration here it is held that time is of essence as to payment as well as to delivery. We conclude in accordance with what we believe to be the clear right, both of American authority and cosmopolitain reason, that in the case on review the seller had the clear Supply Co. v. Cement Co. [Vol. IV, N. S. right to refuse further performance under the circumstances stated in the instruction to the jury. How does plaintiff in error stand as to the very authorities relied upon by it? Defendant in error maintained below, and the jury found, that each installment delivered should be paid for in ten days. The admitted fact is that plaintiff in error denied that this was the contract-it was entitled to a sixty-day credit, and this not only upon deliveries already made but upon those to be made in the future. This contention of plaintiff in error involved by necessary implication the declaration of plaintiff in error's intention "to abandon the contract, or a design no longer to be bound by its terms" as the jury upon sufficient evidence found the contract and its terms to be. The offer of plaintiff in error through its attorney to make any terms as to payment for further deliveries is not material in the case because the offer was made after the defendant in error had exercised its option "to rescind." So even upon the case of Mersey Steel Co. v. Naylor, and similar cases, the plaintiff in error must fail. It may be added that at the very time when plaintiff in error filed its cross-petition in the original action, that party was in default for performance of its contract not in some mere matter of detail, nor as to some "subsidiary provision," but as to every single duty which was enjoined upon it under the contract and the performance of which constituted the consideration-the entire consideration for defendant in error was therefore to enforce a contract which, before action brought, it had broken, and the entire consideration of which it had been, caused to fail. If, as Judge Day finds from the record, the transaction between the parties hereto amounts merely to the creation of a selling agency, it is very clear that upon failure of the agent or factor to transmit the proceeds of sales to the principal at the times when under the contract of agency the payments became due, the principal was at liberty to terminate the agency forthwith and bring suit for the balance then due. The writer is not of opinion that the transaction resulted in the creation of a selling agency but that it was and is a contract to sell. In any view we find no error in the record to the substantial prejudice of plaintiff in error, and for that reason the judgment of the court of common pleas is affirmed. FEES TO TRUST COMPANIES FOR ACTING AS [Hamilton County Circuit Court.] THE UNION SAVINGS BANK & TRUST COMPANY ET AL V. ElizABETH S. SMITH ET AL. Decided, May 12, 1904. Wills-Review of Controversy as to Construction of-Does not Involve Weight of Evidence—Necessary Parties Thereto-Statutory Fees May be Paid to Trust Company Acting as Administrator-Notwithstanding Invalidity of Act Authorizing Appointment-Defense of Will by Administrator-Expenses Involved Thereby. 1. In a controversy which concerns the residue of an estate, legatees who have been paid are not necessary parties. 2. A motion to strike a bill of exceptions from the files upon the ground that it does not contain all the evidence, should be overruled when the errors complained of do not involve the weight of the evidence. 3. A trust company which was appointed without objection as administrator of an estate, and has performed services in that capacity is entitled to compensation therefor, notwithstanding the invalidity of the act under which the appointment was made, and the measure of such compensation is the amount allowed by statute to legally appointed executors and administrators. 4. Where an executor defends a will, and the suit results in a verdict upholding the will, he should be allowed counsel fees, without regard to the fact that the verdict was the result of a compromise between the parties in interest. 5. An executor is not entitled to commissions on real estate which formed part of the residuary estate, and was conveyed in accordance with an agreement between the parties. GIFFEN, J.; SWING, J., and JELKE, J., concur. This action arose in the probate court upon exceptions to the account of The Union Savings Bank & Trust Company as ad |