While I agree with Mr. Justice Davis, that under the authority of Rubber Trading Co. v. Manhattan Rubber Mfg. Co. (221 N. Y. 120) the failure of the plaintiff to prove that notice of rescission was given was fatal to a recovery of damages for an anticipatory breach, the evidence, in my opinion, required the submission to *778the jury of the cause of action for the purchase price of the tires which were fully manufactured. There was evidence from which the jury might have found a waiver by the defendants of the elements of time and quantity in the contract as to these particular tires, and also a tender by the plaintiff of the articles (or a waiver by the defendants of such a tender), the giving of the notice required by subdivision 3 of section -144 of the Personal Property Law (as added by Laws of 1911, chap. 571) and the fact that the articles were not readily resalable.