[9] The introduction of evidence of admitted facts is permissible in cases where the admission is ambiguous in form or limited in scope or where, during the trial of a case, a party seeks to deprive his opponent of the legitimate force and effect of material evidence by the bald admission of a probative fact. (See Dunning v. Maine Cent. R. Co., 91 Me. 87, 97 [39 A. 352, 356, 64 Am.St.Rep. 208]; Baumier v. Anteau, 79 Mich. 509 [44 N.W. 939, 941]; Eesley Light PowerCo. v. Commonwealth Power Co., 172 Mich. 78 [137 N.W. 663, 664]; Webster v. P.W. Moore Son, 108 Md. 572 [ 71 A. 466, 469]; John Hancock Mutual Life Insurance Co. v. Moore, 34 Mich. 41, 43; Ruppel v. Clayes, 230 Mo. App. 699 [ 72 S.W.2d 833, 835-836]; Bank of North America v. Crandall, 87 Mo. 208; Henderson v. Ball, 193 Iowa 812, [186 N.W. 668, 672]; Stevens v. Citizens Gas E. Co., 132 Iowa 597 [109 N.W. 1090, 1091]; Carter v. Ray, 70 Ga. App. 419 [ 28 S.E.2d 361, 369]; Priest v. Inhabitants of Groton, 103 Mass. 530, 538-540; McHenry v. United States, 276 F. 761, 766 [51 App.D.C. 119]; State v. Young, 52 Or. 227 [96 P. 1067, 132 Am.St.Rep. 689, 18 L.R.A.N.S. 688]; People v. Fredericks, 106 Cal. 554 [39 P. 944]; In re Mason's Will, 82 Vt. 160 [72 A. 329, 330]; see also IX Wigmore on Evidence [3d ed. 1940], § 2591; 53 Am.Jur. 94.)

" See also Webster v. P.W. Moore Son, 1908, 108 Md. 572, 592, 71 A. 466; Conservation Company v. Stimpson, 1920, 136 Md. 314, 331, 110 A. 495; Van Lill Company v. Frederick City Packing Company, 1928, 155 Md. 303, 314-316, 141 A. 898; Reinhart v. Cunningham, 1932, 162 Md. 698, 157 A. 896, 897; Wigmore on Evidence, Vol. 2, 3rd Edition, section 302,Theory of Evidencing Intent, pages 200-201; 32 C.J.S. Evidence § 580, p. 436. Title 19 U.S.C.A. § 1304 requires the marking of imported articles and, if they are not marked as required, the imposition of additional duties; and the imposition of penalties for concealing or removing the marking.

It is well settled by Maryland law that a provision in a contract such as the one here under consideration, whereby the buyer agrees to secure the payment of the purchase price by keeping on deposit to the credit of the seller a certain sum, is of the very essence of the contract, and that, therefore, a breach of such provision entitles the seller to recover, unless compliance with such a provision is dependent upon some act by the seller which he has failed to perform. Webster v. P. W. Moore Son, 108 Md. 572, 595, 71 A. 466. We find in the present case no such duty unperformed on the part of the plaintiff.

22 C.J. 744. But this court has gone farther than that, and has held that where the fact sought to be shown, even though independent of the litigated fact, nevertheless has an actual and substantial tendency to establish or disprove such fact, it must be admitted. For, in Webster v. Moore, 108 Md. 572, it permitted the plaintiff, in an action on a contract for the sale of canned tomatoes, where the defendant alleged that the goods tendered were not of the quality called for by the contract, to show that he packed but one grade or quality of goods, that the work was properly done, and that tomatoes of the same pack, but not the identical tomatoes tendered the defendant, were of a certain grade and quality; and there is support for that position. In Hodgkins v. Chappell, 128 Mass. 201, where the issue was whether fish stored under certain conditions were thereby rendered unfit for food, evidence was admitted that other fish stored in the same place under the same conditions were not unfit for food.

Appellant had a right to cancel the contract, when respondent neglected and refused to pay the instalments due. ( Hull Coal Coke Co. v. Empire Coal Coke Co., 113 Fed. 256, 51 C.C.A. 213; Rayfield v. Van Meter, 120 Cal. 416, 52 P. 666; Rugg v. Moore, 110 Pa. 236, 1 Atl. 320; 24 Am. Eng. Ency. Law, 2d ed., p. 1124; Hale v. Trout, 35 Cal. 229.) Failure to pay the instalments for goods delivered will give the seller the right to rescind the contract and to decline further deliveries under it, and sue for that delivered. ( Hess Co. v. Dawson, 149 Ill. 138, 36 N.E. 557; Beatty v. Howe Lbr. Co., 77 Minn. 272, 79 N.W.. W. 1013; Harris Lbr. Co. v. Wheeler Lbr. Co., 88 Ark. 491, 115 S.W.. W. 168; Genesee Fruit Co. v. Barrett, 67 Ill. App. 673; Stokes v. Baars, 18 Fla. 656; Webster v. P. W. Moore Co., 108 Md. 572, 71 Atl. 466; Demarest v. Dunton Lbr. Co., 151 Fed. 508; Eastern Forge. Co. v. Corbin, 182 Mass. 590, 66 N.E. 419; Palmer v. Breen, 34 Minn. 39, 24 N.W. 322; Baltimore v. Schaub Bros., 96 Md. 534, 54 Atl. 106.) F.A. McCall, for Respondent.

In that case, as there had been a failure to deliver any of four successive instalments, this Court refrained from deciding whether non-delivery of one instalment would have warranted rescission, but did decide that non-delivery of the fourth instalment, after three defaults had been waived, gave a right to the purchaser to rescind. In each of the three subsequent cases of McGrath v. Gegner, 77 Md. 331, 336-7, Baltimore City v. Schaub, 96 Md. 534, 552-5, and Webster v. Moore, 108 Md. 572, 595, this Court affirmed the right of a vendor to rescind for non-payment of one instalment. The cases of Baltimore City v. Schaub and Webster v. Moore go much further than it is necessary to go in this case.

Rather, the absence of evidence that is not hearsay is more appropriately analyzed as mere circumstantial evidence. See e.g., Webster v. Moore, 108 Md. 572 (1908) (analyzing evidence presented about the absence of complaints as inconclusive circumstantial evidence rather than hearsay). To be sure, circumstantial evidence may be subject to challenge as irrelevant or unduly prejudicial, but if it is not an assertion it is not hearsay.

A party is not bound to take his adversary's admissions. Plaintiff's right to present his proof to the jury, in his own way, subject to the rules of evidence, was a substantial and important one and defendant's admissions could not deprive him of it. Baumier v. Anteau, 79 Mich. 509, 44 N.W. 939; Dunning v. Maine Cent. R. Co., 91 Me. 87, 39 A. 352; Clayton v. Brown, 30 Ga. 490; Stevens v. Citizens Gas Elec. Co., 123 Iowa 597, 109 N.W. 1090; Terre Haute Elec. Co. v. Kieley, 35 Ind. App. 180, 72 N.E. 658; Priest v. Groton, 103 Mass. 530; Branner v. Nichols, 59 P. 633, 61 Kan. 356; Webster v. P.W. Moore Son, 108 Md. 572, 71 A. 466; Maloney v. Rys. Co. (Mo. Sup.), 237 S.W. 509; Henderson v. Ball, 193 Iowa 812, 186 N.W. 668; Kimball v. Vroman, 35 Mich. 310; Whiteside v. Loney, 171 Mass. 431, 50 N.E. 931; Jno. Hancock Life Ins. Co. v. Moore, 34 Mich. 41; Easley L. P. Co. v. Power Co., 172 Mich. 78; 64 Corpus Juris, p. 112; 22 Corpus Juris, p. 330. (2) The verdict is not excessive. Brucker v. Gambaro (Mo. Sup.), 9 S.W.2d 918; Christopher v. Railroad Co. (Mo. Sup.), 55 S.W.2d 449; Kleinlein v. Foskin (Mo. Sup.), 13 S.W.2d 648; Powell v. Kansas City Rys. Co. (Mo. Sup.), 226 S.W. 916; Morris v. Mo. Portland Cement Co. (Mo. Sup.), 19 S.W.2d 865; Jackman v. Ry. Co. (Mo. Sup.), 231 S.W. 978; Koonse v. Standard Steel Works Co., 221 Mo. App. 1231; Crain v. Railroad Co., 208 S.W. 471.