Repudiation of Contracts

Author(s): Samuel Williston

Source: Harvard Law Review, Vol. 14, No. 6 (Feb., 1901), pp. 421-441
Published by: The Harvard Law Review Association
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 REPUDIATION OF CONTRA CTS. 421

REPUDIATION OF CONTRACTS.

II.

(QN repudiation of a contract the aggrieved party must have a

~.1 remedy on the contract. The only question can be what he
must do in order to perfect his right of action.
If he has already performed all that the contract required of
him, there can be no doubt that he may sue at once on the con-
tract if the time when the defendant's performance was due has
arrived. Whether suit may be brought at once even though that
time has not arrived will be discussed later.
The situation is in legal effect similar when the injured party
has not fully performed, but is literally prevented by the other
party from continuing performance. Where work requires some
cooperation of both parties this frequently happens. Though the
plaintiff's damages may not be the same as if he had fully per-
formed, his right of action is as complete, for when the defendant
has himself caused the plaintiff's non-performance he cannot take
advantage of it as a defence.
But if the injured party has not fully performed and is not pre-
vented from continuing, yet because of the repudiation by the
other party has just reason to believe that the latter will not fulfil
his contractual obligation, the situation presents greater difficulty.
In Frost v. Knight,l Cockburn, C. J., thus stated the law: "The
promisee, if he pleases, may treat the notice of intention as inoper-
ative, and await the time when the contract is to be executed,
and then hold the other party responsible for all the consequences
of non-performance; but in that case he keeps the contract alive
for the benefit of the other party as well as his own; he remains
subject to all his own obligations and liabilities under it, and
enables the other party not only to complete the contract, if so
advised, notwithstanding his previous repudiation of it, but also
to take advantage of any supervening circumstance which would
justify him in declining to complete it.
" On the other hand, the promisee may, if he thinks proper, treat
the repudiation of the other party as a wrongful putting an end to
the contract, and may at once brino his action as on a breach of

1 L. R. 7 Ex. iii.
55

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 422 HARVARD LAW REVIEW.

it; and in such action he will be entitled to such damages as

would have arisen from the non-performance of the contract at the
appointed time, subject, however, to abatement in respect of any
circumstances which may have afforded him the means of miti-
gating his loss."'
This language was quoted with approval by Cotton, L. J., in
Johnstone v. Milling,2 and may be regarded as expressing the
present understanding of English lawyers on the matter in ques-
tion.3 The alternative stated as permissible in the first paragraph
of Lord Cockburn's statement is not allowed generally in this
country. There is a line of cases running back to I845 4 which
hold that after an absolute repudiation or refusal to perform by one
party to a contract, the other party cannot continue to perform
and recover damages based on full performance. This rule is only
a particular application of the general rule of damages that a plain-
tiff cannot hold a defendant liable for damages which need not
have been incurred; or, as it is often stated, the plaintiff must, so
far as he can without loss to himself, mitigate the damages caused
by the defendant's wrongful act. The application of this rule to
the matter in question is obvious. If a man engages to have work
done, and afterwards repudiates his contract before the work has
been begun or when it has been only partially done, it is inflicting
damage on the defendant without benefit to the plaintiff to allow
the latter to insist on proceeding with the contract. The work
may be useless to the defendant, and yet he would be forced to
pay the full contract price. On the other hand, the plaintiff is

1 L. R. 7 Ex. iiI, 112. 2 i6 Q. B. D. 460.

3 See e. S. Leake, Contracts (3d ed.), 752; Mayne,
also quoted and acted on in Dalrymple v. Scott, i9 Ont. App. 477.
4 Clark v. Marsiglia, I Denio, 317, is the earliest decision. In this case the plain-
tiff was employed to clean and repair a number of pictures, for which the defendant
agreed to pay. After the plaintiff had begun work upon them the defendant coun-
termanded the order. The plaintiff nevertheless completed the work and sued for
the full price. The court held he could recover only for what he had done before the
order was countermanded, with such further sum as would compensate him for the
interruption of the contract at that point.
Later decisions involving the same principle are Moline Scale Co. v. Beed, 52
Ia. 307 (coaf McAlister v. Safley, 65 Ia. 719); Black v. Woodrow, 39 Md. 194, 2I6.
Heaver v. Lanahan, 74 Md. 493; Collins v. Delaporte, 115 Mass. 159 (semble); Gib-
bons v. Bente, 51 Minn. 499; Dillon v. Anderson, 43 N. Y. 231; Lord v. Thomas,
64 N. Y. 107 (semble); Johnson v. Meeker, 96 N. Y. 93; People v. Aldridge, 83 Hun,
279 (semble); Heiser v. Mears, 120 N. C. 443; Davis v. Bronson, 2 N. Dak. 300;
Chicago, etc. Co. v. Barry, (Tenn.} 52 S. W. Rep. 451; Tufts v. Lawrence, 77 Tex.
526; Derby v. Johnson, 21 Vt. 17; Danforth v. Walker, 37 Vt. 239; 40 Vt. 257;
Cameron v. White, 74 Wis. 425; Tufts v. Weinfeld, 88 Wis. 647.

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 REPUDIAT ION OF CONTRA CTS. 423

interested only in the profit he will make out of the contract. If

he receives this it is equally advantageous for him to use his time
otherwise.
By every consideration of mercantile convenience these deci-
sions are correct. The facts of the only case 1 which is directly
opposed to them need only be stated to illustrate this. The de-
fendant, resident in Illinois, contracted to buy of the plaintiff, resi-
dent in New Jersey, 500 tons of barbed wire. After 120 tons had
been delivered the defendant requested the plaintiff to stop further
shipments, and on the refusal of the latter, telegraphed, "Will not
take wire if shipped." Nevertheless, the plaintiff went through
the futile and expensive steps of preparing and sending the rest of
the wire, and was held entitled to recover damages for so doing.
The English courts have recognized the duty of a plaintiff to
mitigate or at least not to enhance the damages which a defendant
is to be called upon to pay ;2 and it is quite possible that Lord
Cockburn, in stating as he did the first alternative right of a party
aggrieved by repudiation of a contract, did not appreciate that his
statement justified a violation of that duty.3 It need not be con-
tended that in every case the principle of damages in question will
deprive the plaintiff of the right to continue performance of the
contract after it has been repudiated. There may be cases where
so doinig will not needlessly enhance damages. But it is clear that
such cases must be exceptional.
Lord Cockburn's statement of the plaintiff's second alternative
is that "The promisee may, if he thinks proper, treat the repudi-
ation of the other party as a wrongful putting an end to the con-
tract, and may at once bring his action as on a breach of it." The
two clauses of this sentence logically contradict each other. If
the contract is put an end to, no action can be brought upon it.
If an action may be brought upon it, either at once or at any time
in the future, it is not put an end to. The question of the time
when the action should be brought is not immediately essential

1 Roebling's Sons' Co. v. Lock Stitch Fence Co., 130 Ill. 66o. See, also, Lake
Shore, etc. Ry. Co., I52 Ill. 59.
2 Mayne, Damages (6th ed.), i8o; Harries v. Edmonds, I C. & K. 686, 687; Roper
v. Johnson, L. R. 8 C. P. i67; Roth v. Taysen, (C. A.) 12 T. L. R. 21i; Brace v.
Calder, (C. A.) [I895] 2 Q. B. 253; conf Brown v. Muller, L. R. 7 Ex. 319; Re South
African Trust Co. (C. A.) 74 L. T. 769.
3 Lord Cockburn's statement is also sometimes repeated by American courts, which
would not be likely to enforce it to its logical conclusion. See Foss, etc. Co. v. Bullock,
59 Fed. Rep. 83, 87; Strauss v. Meertief, 64 Ala. 299, 307; Claes, etc. Mfg. Co. v.
McCord, 65 Mo. App. 507; Walsh v. Myers, 92 Wis. 397.

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424 HARVARD LAW REVIEW.

here, and that question being left for subsequent discussion, it may
be laid down as a more logically coherent and more practically
useful statement that the promisee may, if he thinks proper, treat
the repudiation of the other party as a ground for putting an end
to the contract, as shown in the earlier part of this article. If this
course is adopted no rights under the contract can remain, though
a quasi-contractual right to recover the value of anything which
has been done will survive. Or the promisee may decline to con-
tinue to perform and sue the promisor for his breach of contract.
Ordinarily, of course, a plaintiff in an action upon a contract
cannot succeed if he has himself failed to perform at the proper
time; but if that failure to perform was excused by the defendant's
own conduct this principle does not apply. The authorities fur-
nish abundant illustration of this when the excuse for the plaintiff's
failure to perform consisted in a prior serious breach of the con-
tract by the defendant.1 The same principle covers the case of
repudiation without an actual breach of contract. The reason why
the plaintiff must ordinarily have performed in order that he may
recover is the same reason which underlies the doctrine of failure
of consideration. The mutual performances in a bilateral contract
are, barring exceptional cases, intended to be given in exchange
for each other, and if the exchange fails on one side owing to defec-
tive performance, the other party may likewise decline to perform.
This reason was pretty well hidden during the early development
of the doctrine under the terminology of implied conditions, but it
is sufficiently apparent at the present day. Now, if it be an excuse
which will justify a promisor in breaking his promise that his
co-contractor has failed to give the performance agreed upon as an
exchange, it should likewise be an excuse that the co-contractor
has made it plain, as by repudiation, that he will not give such
performance when it becomes due in the future. A promisor can
no more be expected to perform his promise when he is not going
to receive counter-performance than when he actually has not
received it. Baron Parke -a judge not likely to stretch too far
the rules of the common law in order to work out justice - so held
in Ripley v. M'Clure.2
Neither where the plaintiff's excuse for his own non-performance
is the defendant's actual breach of the contract nor where that ex-
cuse is a prospective breach because of repudiation does the plain-
tiff terminate the contract merely by availing himself of his excuse.

1 See Parsons on Contracts (8th ed.), ii. 7go. 2 4 Ex. 345.

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 REP UDIA TION OF CONTRA CTS. 425

The contract still exists, but one party to it has a defence and an
excuse for non-performance. It may be thought that this state-
ment differs from that of Lord Cockburn's second alternative only
in words. Even so, words have their importance. If wrongly
used, wrong ideas are sure to follow, and wrong decisions follow
wrong ideas. It is a source of serious confusion in the cases that
a contract is frequently spoken of as " rescinded " or " put an end
to," when in truth one party to the contract has merely exercised
his right to refuse to perform because of the wrongful conduct of
the other party.' To be sure it frequently makes little practical
difference whether this is the case or whether the contract is in fact
rescinded. Where the only question that arises is in regard to the
liability of a defendant for his refusal to perform the result is the
same whether the whole contract is rescinded or whether it still
subsists subject to a defence on the part of the defendant. But if
the defendant seeks by counter-claim or cross-action to establish a
right on his part to damages; his success depends on the existence
of the contract. And more than one court has been led into
the error of holding that no such right, of action existed - that a
voluntary exercise of the right to refuse to continue performance
necessarily involved a total termination of the contract.2

1 This error is adverted to in Anvil Mining Co. v. Humble, I53 U. S. 540, 55

The plaintiff in that case had ceased to perform because of a breach of contract by the
defendant and sought to recover damages. Brewer, J., delivering the opinion of the
court, said (p. 551): " It is insisted, and authorities are cited in support thereof, that a
party cannot rescind a contract and at the same time recover damages for his [its ?] non-
performance. But no such proposition as that is contained in that instruction. It
only lays downs the rule, and it lays that down correctly, which obtains when there is
a breach of contract. Whenever one party thereto is guilty of such a breach as is
here attributed to the defendant, the other party is at liberty to treat the contract as
broken and desist from any further effort on his part to perform; in other words, he
may abandon it, and recover as damages the profits which he would have received
through full performance. Such an abandonment is not technically a rescission of the
contract, but is merely an acceptance of the situation which the wrong-doing of the
other party has brought about. See, also, Hayes v. Nashville, 8o Fed. Rep. 64I, 645.
2 Cox v. McLaughlin, 54 Cal. 605; Porter v. Arrowhead Reservoir Co., ioo Cal. 5oo,
502; Palm v. Ohio, etc. R. R. Co., i8 Ill. 2I7; Howe v. Hutchison, ioS Ill. 5oi; Lake
Shore, etc. Ry. Co. v. Richards, 32 N. E. Rep. 402 (Ill. Sup. Ct. i892); Jones v. Mial,
79 N. C. I64. These cases hold that though a serious breach of contract will justify
the other party in treating the contract as rescinded and so refusing to continue to per-
form, yet at least unless the breach amounts to actual prevention the party aggrieved
cannot, if he ceases to perform, sue on the contract. The late Illinois case cited was,
however, reversed on rehearing, and though somewhat limited in its language, perhaps
overrules the earlier decisions in the same state. I52 Ill. 59, 80, 82. The first Cali-
fornia decision was chiefly based on the early Illinois case. So in Hochster v. De La
Tour, 2 E. & B. 678, counsel for the defendant, though their case did not require it,

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 426 HAR VARD LAW REVIEW.

Further, in order to exercise his right to rescind a contract, an

injured party must indicate his election so to do by positive action,'
but if he only wishes to refrain from performing his part of the
contract, he is not seeking to assert an affirmative right, but stand-
ing on the defensive. He need do nothing except refrain from per-
forming or receiving performance until he sues or is sued, when
he should plead the cause which justifies his non-performance.2 Of
course he may waive this justification, but only by some positive
action or estoppel.3

based their whole argument on the assumption that repudiation was equivalent to an
offer to rescind, and that if the aggrieved party did not continue to hold himself ready
and willing to perform he could not sue upon the contract.
In Bethel v. Salem Improvement Co., 93 Va. 354, also, the plaintiff was not allowed
to recover for loss of profits, after having ceased to perform owing to the defendant's
breach of contract.
Citations need not be multiplied to prove the error of the foregoing decisions and
the right of the plaintiff to cease performance upon the defendant's repudiation and
yet sue upon the contract. Cort v. Ambergate, etc. Ry. Co., I7 Q. B. I27; Ripley v.
M'Clure, 4 Ex. 345; Marshall v. Mackintosh, 78 L. T. 750; Leeson v. North British,
etc. Co., Ir. R. 8 Co. L. 309; Anvil Mining Co. v. Humble, I53 U. S. 540; McElwee
v. Bridgeport Land, etc. Co., 54 Fed. Rep. 627 (C. C. A.); Cherry Valley Works v. Flor-
ence, etc. Co., 64 Fed. Rep. 569 (C. C. A.); Martin v. Chapman, 6 Port. 344; Baldwin
v. Marqueze, 9I Ga. 404; Riley v. Walker, 6 Ind. App. 622; Lowe v. Harwood, I39
Mass. I33; Lee v. Briggs, 99 Mich. 487; Armstrong v. St. Paul, etc. Co., 48 Minn.
113; Wharton v. Winch, I40 N. Y. 287; Reynolds v. Reynolds, 48 Hun, I42.
Another instance of the confusion of ideas due to the improper use of words here
criticised may be found in Fox v. Kitton, I9 Ill. 519, where the court says that there is
no conflict between the views of Parke, B., and the decision of Hochster v. De La
Tour, 2 E. & B. 678, since Parke, B., said in Phillpotts v. Evans, 5 M. & W. 475, 477:
" The notice (that he will not receive the wheat) amounts to nothing until the time
when the buyer ought to receive the goods, unless the seller acts on it in the mean
time, and rescinds the contract." This, the Illinois court adds, " is in strict accordance
with the principles recognized in . . . Hochster v. De La Tour." Now Parke was
using the word " rescinds " in its true sense. What he meant and what he said was
that the seller might at his option terminate the contract. The Illinois court thought
he was using the word in the improper way in which Lord Coleridge did, and that his
meaning was that the seller might, without himself perforrning, so act as to entitle him-
self to sue the buyer immediately for breach of the contract -a doctrine Parke
expressly denied both in Phillpotts v. Evans and Ripley v. M'Clure, 4 Ex. 345, 359.
The mistake made in Fox v. Kitton is repeated in Kadish v. Young, I08 Ill. I70.
1 I4 HARVARD LAW REVIEW, 329.
2 Where the ground of non-performance is an actual breach of contract by the other
party, it is an obvious consequence of the rule of common-law pleading which required
the plaintiff to allege and prove his own performance, that he would fail if he had
not duly performed, though the defendant had not manifested any election. Changes
in modern pleading cannot have affected the substantive law on this point. Where
the ground of non-performance is repudiation or a prospective breach, there should
be no difference, for the essential nature of the defence is the same.
8 See Langdell, Summary of Contracts, ? I77; Harriman on Contracts, I63-I67.

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 REPUDIA TION OF CONTRA CTS. 427

If it is clear that one party to a contract is going to be unable to

perform it the other party should be excused from performing.
The excuse is the same as in cases where a wilful intention not to
perform is manifested. The party aggrieved is not going to get
what he bargained for in return for his performance. It is imma-
terial to him, and it should be immaterial to the court whether the
reason is because the other party cannot or because he will not do
what he promised. Even if the prospective inability is due to vis
major this should be true.1
There is some difficulty in determining when it is sufficiently
certain that one side of a contract will not be performed, to justify
a refusal to perform the other side. Certainly if a party announces
that he cannot perform, the other party is justified in taking him
at his word.2 Destruction of the subject-matter of the promise of
one party is clearly a defence to the other.3 Transfer to a third
person of property forming the subject-matter of the contract is
not so clear, since it is possible that the grantor may recover the
title in time to fulfil the contract, but ordinarily the chance seems
so remote that the defence should be allowed.4 Insolvency of one
party to a contract of sale is not always sufficient reason for refusal
to perform by the other, for an assignee or trustee in insolvency or
bankruptcy may find it for the advantage of the insolvent estate to

1 Langdell, Summary, ? I 58, and see cases in the following notes.

2 But it must be a clear and positive statement. Smoot's Case, I 5 Wall. 36. See,
also, Re Phoenix Bessemer Steel Co., 4 Ch. D. io8.
8 9 HARVARD LAW REVIEW, io6. Courts of equity in some jurisdictions have, how-
ever, established an exception to this rule in the case of contracts for the sale of real
estate. 9 HARVARD LAW REVIEW, I II.
4 Fort Payne, etc. Co. v. Webster, i63 Mass. 134; James v. Burchell, 82 N. Y. Io8.
Contra are Garberino v. Roberts, IO9 Cal. 125; Webb v. Stephenson, II Wash. 342.
See, also, Joyce v. Shafer, 97 Cal. 335; Shively v. Semi-Tropic, etc. Co., 99 Cal. 259.
In the latter cases the court cites decisions establishing the doctrine that a man may
contract to sell land which he does not own, and draws the inference that if the seller
ceases to own land which is the subj.ect of a contract it does not excuse the other
party. The inference does not seem warranted. In Ziehen v. Smith, 148 N. Y. 558,
at the time of performance there was an outstanding lien on the property, of which
neither buyer nor seller knew at the time of entering into the contract. The buyer,
without demanding fulfilment of the contract, at once brought suit to recover part of
the price which he had paid. The court held he could not recover, as the incum-
brance was one which was in the power of the vendor to remove, and he might have
done so if requested. This decision was followed in Higgins v. Eagleton, T55 N. V.
466. In the absence of any fraudulent concealment the determining question should
be, Would a reasonable man be warranted in inferring that the contract would not be
carried out? See Forrerv. Nash, 35 Beav. I67; Brewer v. Broadwood, 22 Ch. D. 105;
Lytle v. Breckenridge, 3 J. J. Marsh. 663; Payne v. Pomeroy, 2I D. C. 243.

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 428 HAR VARD LA W RE VIE W.

complete the bargain, and if so he ought to have that right.' But

no one is obliged to give credit to one who is insolvent or bank-
rupt. Insolvency or bankruptcy affords a defence to any such
contractual obligation, and payment may be required on delivery,
though the contract expressly provides for a term of credit.2 And
if a contract is of such a nature that an assignee cannot carry it
out, insolvency will excuse further performance by the other party.3
These seem to be the only cases in which prospective inability of
one party is sufficiently certain to be a defence to the other party.

III.

The final question remains, When may the injured party bring
his action upon the contract ? If a technical declaration were as
muclh thought of to-day as it was once, the question could hardly
have become troublesome. From a technical point of view, it
seems obvious that in an action on a contract the plaintiff must
state that the defendant broke some promise which he had made.
If he promised to employ the plaintiff upon June i, the breach
must be that he did not do that. A statement in May by the
defendant that he was not going to employ the plaintiff upon
June i can be a breach only of a contract not to make such state-
ments. It is perhaps not wholly by chance that the doctriine of
anticipatory breach has arisen as the exactness of common-law
pleading has become largely a thing of the past; for the science
of special pleading, in spite of the grave defects attending it, had
the great merit of making clear the exact questions of law and fact
to be decided.
The matter is so plain on principle that theoretical discussion is
hardly possible4 except to make certain distinctions, which have

1 Leake, Contracts (3d ed.), 753, iog5, and cases cited; Rappleye v. Racine Seeder
Co., 79 Ia. 220, 228; Brassel v. Troxel, 68 Ill. App. I3I.
2 See authorities above cited. Also, Lennox v. Murphy, I7I Mass. 370, 373; Diem
v. Koblitz, 49 Ohio St. 4I; Pardee v. Kanady, IOO N. Y. I2I; Dougherty Bros. v.
Central Bank, 93 Pa. 227; Lancaster Bank v. Huver, II4 Pa. 2i6. Mere doubts of
solvency, even though reasonable, furnish no defence to the literal performance of a

contract. C. F. Jewett Publishing Co. v. Butler, IS Mass. 5I7.

, Leake, Contracts (3d ed.), I097; Ex parte Pollard, 2 Low. 4II; Chemical Nat.
Bank v. World's Fair Exposition, I 70 Ill. 82.
4 It need hardly be said that the doctrine of anticipatory breach is peculiar to our law.
In Mommsen's Beitriige zum Obligationenrecht, Abtheilung, 3, ? 4, it is said: " The
obligation must be already due. So long as the time of maturity has not arrived, the
obligor has always a defence in case the creditor should endeavor to enforce the obli-
tion."
And in the typical case of one who regardless of his contract to sell and deliver in

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 REPUDIA TION OF CONTRA CTS. 429

not always been observed, and which, if observed, are a sufficient

answer to the claims of practical convenience that furnish the only
support for the advocates of the doctrine of anticipatory breach.
It seems desirable, also, to explain certain early cases which have
led to some confusion, and thereby show the lack of historical
basis for the doctrine; and of this first.
In Y. B. 21 Edw. IV. 54, pl. 26, Choke, J., says: "If you are
bound to enfeoff me of the manor of D. before such a feast, if you
make a feoffment of that manor to another before the said feast,
notwithstanding that you repurchase the property before the said
feast, still you have forfeited your obligation because you were
once disabled from making the feoffment." 1 This and similar
statements are repeated several times in the early books.2
What Choke was talking about was a bond with a condition.
This appears from the case itself where his remark was made as
an illustration, and so it was understood. At the present day a
bond with a condition to convey before a certain day would be
regarded as in substance the equivalent of a covenant to pay on
or after the day the penal sum of the bond (for which the law
would substitute appropriate damages) if a conveyance was not
made before the day. That does not represent the early under-
standing of such an instrument. The words of a bond, which
are still used, acknowledging an immediate indebtedness, and
adding a proviso in which case the instrument is to become void,
had a literal meaning for our ancestors. "A specialty debt was
the grant by deed of an immediate right, which must subsist
until either the deed was cancelled or there was a reconveyance by
a deed of release." 4 It has been frequently pointed out that a
debt was not regarded in our early law as a contractual right but
a property right, and a deed creating, a debt was not looked upon,
as it is to-day, as a promise to pay money, but as a grant or con-

the future specific property to A sells and delivers it to B, Oesterlen, Der Mehrfache
Verkauf, pp. I 7, i8, says: " The temporary impossibility of performance due to the
first delivery is wholly immaterial if it is removed at the proper time." . . . " When
fulfilment is not made to the latter (i. e. A) at the proper time, then for the first time
has a legal injury been done."
1 In Sir Anthony Main's Case, S Coke, 2o b, 21 a, this passage is literally translate
from the Year Book, and it is to Coke, probably, that the later currency of the citatio
is due.

2 In I Rolle's Ab. 447, 448, under the title " Condition," this and several other simi-
lar cases are put. See, also, 5 Viner's Ab. 224.
3 This is evident, e.g. from Rolle's classification of the authority under " Condition."
4 9 HARVARD LAW REVIEW, 56, by Professor Ames.
56

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 430 HARVARD LAW REVIEW.

veyance of a sum of the grantor's money to the grantee.' Accord-

ingly a bond was closely analogous to a mortgage, - a conveyance
with a provision of defeasance attached. If the condition was or
became impossible there remained an absolute debt created by the
bond.2 Choke's idea seems to have been that when the obligor of
the bond sold the property, the condition became at that moment
impossible of performance. There was, therefore, at that moment,
by virtue of the bond itself, an absolute indebtedness, and this
indebtedness, having once become absolute, could not subse-
quently be qualified. The condition could not be temporarily in
abeyance.
Whether this view of the law was that generally taken by the
contemporary judges, and, if so, when it gave way to a more
modern conception, is not very material to this discussion, but it
may be mentioned that Choke's statement seems inconsistent with
the opinions of writers of authority not long afterwards.3 What
is material to observe is that, whichever way the point is decided,
these authorities have no bearing upon the question of the imme-
diate right to sue upon. the repudiation of a contract. It may
safely be asserted that Choke and his contemporaries and succes-
sors would all have agreed that a covenant to convey land before a
certain feast, or a covenant to pay damages if the covenantor failed
to convey land before a certain feast, could in no event have been
sued upon before the feast.

1 Parol Contracts prior to Assumpsit, by Professor Ames, 8 HARVARD LAW RE-

VIEW, 252; Pollock & Maitland, Hist. Eng. Law (2d. ed.), ii. 205; Langdell, Summary
of Contracts, ? IOO.
2 Vynior's Case, 8 Coke, 8i b, 83 a; Perkins, Profitable Book, ?? 736, 757; I Roll
Ab. 419 (c) P1. 2; lb. 420 (E) pl. 1, 2. The last passage reads: " If the condition
bond or feoffment is impossible when it is made it is a void condition, but the oblig
tion or feoffment is not void but single, because the condition is subsequent. But
a condition precedent be impossible when it is made the whole is void, for nothin
passes before the condition is performed." Perkins (? 757) gives a case of a condit
originally possible, but subsequently becoming impossible.
8 Perkins, Profitable Book, ? 8oo: " And there is a diversity when the condition is
to be performed on the part of the feoffor or grantor, etc., and when on the part of
the feoffee or grantee, etc. For when it is to be performed on the part of the feoffee
or grantee, it behoveth him that he be not disabled at any time to do or perform the
same."
? 8oi. " But when the condition is to be performed on the part of the feoffor
grantor, although they are disabled to perform it at any time before the day on wh
it ought to be performed, yet if they are able to perform the same at the day,
it is sufficient, except in special cases." Illustrations are also given by the author
This was written in the first half of the sixteenth century. Coke adopted the div
sity (Co. Litt. 22I b); but neither author gives a satisfactory reason for it.
In the case put by Choke the condition was to be performed by the obligor, grant
ofr the. hon,l

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 REP UDIA TION OF CONTRACTS. 431

When, therefore, Fuller, C. J., in a case recently decided by the

Supreme Court of the United States, asserts, "1 It has always been
the law that where a party deliberately incapacitates himself or
renders performance of his contract impossible, his act amounts to
an injury to the other party, which gives the other party a cause
of action for breach of contract," I it must, with deference, be said
that the learned judge is mistaken. The mistake is perhaps more
pardonable than it would otherwise be, had not an English court
fallen into the same error. In Ford v. Tiley,2 Bayley, J. in deliver-
ing the opinion of the court, draws the conclusion from some of
the old authorities above referred to " that where a party has dis-
abled himself from making an estate he has stipulated to make at
a future day, by making an inconsistent conveyance of that estate,
he is considered as guilty of a breach of his stipulation, and is
liable to be sued before such day arrives." 3 This was not, so far
as appears, necessary to the decision of the case. The decision
seems to have been correct, as will presently be shown, but Bay-
ley's remark is noteworthy as the first statdment in the English
books authorizing the idea that an action may be brought on a
promise before it is broken. It is to be noticed that this remark
is confined to the case of an estate, and is not made as laying
down a general principle of the law of contracts.4
In I846 there were decided two cases in which a defendant was
held liable for the breach of a promise to marry. In one of these
cases 6 the defendant's promise was alleged to be simply to marry
the plaintiff; in the other case "to marry her within a reasonable
time next after he should thereunto be requested." 6 In both
cases the defendant was held liable without any request by the
plaintiff.
These cases did not profess to establish any general doctrine

1 Roehm v. Horst, 20 Supr. Ct. Repr. 780, 787. It is also stated in the opinion
(p. 783) that this was " not disputed." If so, the counsel for the defendant conceded
more than they should.
2 6 B. & C. 325 (1827). But the error is pointed out, though perhaps not con-
clusively shown, in the able opinion of Wells, J., in Daniels v. Newton, I 14 Mass. 530.
It is also adverted to in the argument of counsel for the defendant in Short v. Stone,
8 Q. B. 358, 364, and in Lovelock v. Franklyn, 8 Q. B. 371, 376.
3 6 B. & C. 325, 327.
4 Bayley's remark was repeated as representing the law in Heard v. Bowers, 23
Pick. 455, 460; but in that case, as the impossibility was not due to the voluntary act
of the promisor, the rule was held inapplicable. In Daniels v. Newton, i 14 Mass.
530, the dictum in Heard v, Bowers was repudiated.
5 Caines v. Smith, I M. & W. I89.
6 Short v. Stone, 8 Q. B. 358.

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 432 HARVARD LAW REVIEW.

that a contract could be broken before the time for its perform-
ance. Moreover, Parke, B., twice expressly ruled the contrary
at about this time; 1 and Lord Denman expressed a similar opin-
ion.2
So the matter stood in I852 when the case of Hochster v. De
La Tour 8 was decided. In that case the plaintiff had entered into
a contract with the defendant to serve him as a courier for three
months beginning June I, 1852. On May i i, the defendant wrote
to the plaintiff declining his services. The action was begun May
22, and, after a verdict for the plaintiff, objection was taken that
the action was prematurely brought. Counsel for the defendant,
however, argued -unnecessarily so far as the immediate case was
concerned - that the plaintiff, having taken other employment, had
terminated the contract. Lord Campbell, in delivering the opinion
of the court in favor of the plaintiff, showed that the situationi
would be unfortunate if the plaintiff, as a condition of getting a
right of action, must decline other employment and hold himself
ready to perform until June i. From this, apparently misled by
the argument of counsel, Lord Campbell drew the conclusion that
the plaintiff must have an immediate right of action; and also
drew the conclusion from the earlier cases already referred to 4

1 Phillpotts v. Evans, 5 M. & W. 475,477 (1839) "I think no action would the
lain for the breach of the contract, but that the plaintiffs were bound to wait until the
time arrived for delivery of the wheat, to see whether the defendant would then
receive it. The defendant might then have chosen to take it, and would have been
guilty of no breach of contract, for all that he stipulates for is that he will be ready
and willing to receive the goods, and pay for them, at the time when by the contract
he ought to do so. His contract was not broken by his previous declaration that he
would not accept them; it was a mere nullity, and it was Ferfectly in his power to
accept them, nevertheless; and, vice versa, the plaintiffs could not sue him before."
In Ripley v. M'Clure, 4 Ex. 345 (I849), Parke reiterated his statement that a notice
before the time for performance could not be a breach of contract, but held that it
might excuse the other party from continuing to perform.
2 Lovelock v. Franklyn, 8 Q. B. 37I, 378 (I846): " This distinction shows that the
passage cited from Lord Coke is inapplicable; that proves no more on the point now
before us than that, if an act is to be performed at a future time specified, the con-
tract is not broken by something which may merely prevent the performance in the
mean time." As Lord Denman had immediately before taken part in the decision
of Short v. Stone, 8 Q. B. 356, it may be assumed he did not regard that decision as
inconsistent with his later remarks.
In Thomson v. Miles, I Esp. I84, Lord Kenyon had said that it had been solemnly
adjudged that if a party sells an estate without having title, but before he is called
upon to make a conveyance, by a private act of Parliament, gets such an estate as will
enable him to make a title, that is sufficient."
3 2 E. & B. 678.
4 He adds the case of Bowdell v. Parsons, io East, 359, as establishing the proposi-

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 REP UDIA TION OF CONTRA CTS. 433

that incapacity before the time for performance had already been
settled by decision to be a breach, neglecting to notice the distinc-
tion, hereafter adverted to, between a fixed future day and a day
which may be fixed at any time in the present or future.
These two misapprehensions of Lord Campbell, for as such they
must be regarded, make the case an unsatisfactory one. It has,
however, settled the law in England,l and the doctrine for which
it stands has been adopted in Canada,2 in this country either by
dictum or decision in the federal courts,3 and in the courts of a
majority of the states in which the question has arisen.4 There
are strong opinions to the contrary,5 however, and in many states

tion that "if a man contracts to sell and deliver specific goods on a future day, and
before the day he sells and delivers them to another, he is immediately liable to an
action at the suit of the person with whom he first contracted to sell and deliver them."
In fact, the contract in that case was to deliver upon request.
1 Frost v. Knight, L. R. 7 Ex. i i i; Johnston v. Milling, I6 Q. B. D. 460; Synge v.
Synge, (C. A.) [i894] I Q. B. 466; Roth v. Taysen, 73 L. T. 628. See, also, Danube,
etc. Co. v. Xenos, I3 C. B. (N. S.) 825; Avery v. Bowden, 5 E. & B. 7I4; Reid v.
Hoskins, 6 E. & B. 953; Roper v. Johnson, L. R. 8 C. P. i67; Brown v. Muller, L.
R. 7 Ex. 3I9; Re South African Trust Co., 74 L. T. 769.
2 Dalrymple v. Scott, i9 Ont. App. 477, 483.
3 Roehm v. Horst, 20 Sup. Ct. Repr. 780, affirming 9I Fed. Rep. 345 (C. C. A.),
which affirmed 84 Fed. Rep. 565; Grau v. McVicker, 8 Biss. I3; Dingley v. Oler, ii
Fed. Rep. 372; Foss, etc. Co. v. Bullock, 59 Fed. Rep. 83, 87; Marks v. Van Eeghen,
85 Fed. Rep. 853 (C. C. A). The Supreme Court long remained apparently undecided.
Dingley v. Oler, I I7 U. S. 490; Cleveland Rolling Mill v. Rhodes, 12I U. S. 255,
264; Pierce v. Tennessee, etc. R. R. Co., I73 U. S. I, I2. See, also, Edward Hines
Lumber Co. v. Alley, 73 Fed. Rep. 603 (C. C. A.).
Clark v. National Benefit Co., 67 Fed. Rep. 222, must now be regarded as overruled.
4 Wolf v. Marsh, 54 Cal. 228; Fresno, etc. Co. v. Dunbar, 8o Cal. 530; Poirier v.
Gravel, 88 Cal. 79; Remy v. Olds, 88 Cal. 537; Thomson v. Kyle, 39 Fla. 582; Fox
v. Kitton, I9 Ill. 5I9; Follansbee v. Adams, 86 Ill. I3; Kadish v. Young, io8 Ill. I70;
Engesette v. McGilvray, 63 Ill. App. 461; Kurtz v. Frank, 76 Ind. 594; Adams v.
Byerly, I23 Ind. 368, 37I; Crabtree v. Messersmith, i9 Ia. I79; Holloway v. Griffith,
32 Ia. 409; McCormick v. Basal, 46 Ia. 235; Platt v. Brand, 26 Mich. I73; Sheahan,
v. Barry, 27 Mich. 2I7; Kalkhoff v. Nelson, 6o Minn. 284, 287; Bignall, etc. Mfg.
Co. v. Pierce, etc. Mfg. Co., 59 Mo. App. 673; Claes, etc. Mfg. Co. v. McCord, 65 Mo.
App. 507; Burtis v. Thompson, 42 N. Y. 246; Howard v. Daly, 6i N. Y. 362 (conf. Shaw
v. Republic L. I. Co., 69 N. Y. 286, 293; Ferris v. Spooner, I02 N. Y. Io; Nichols v.
Scranton, etc. Co., I37 N. Y. 47I; Stokes v. McKay, 147 N. Y. 223; Benecke v.
Haebler, 38 N. Y. App. Div. 344; Union Ins. Co. v. Central Trust Co., 157 N. Y.
633, 643; Hicks v. British Am. Assur. Co., i62 N. Y. 284; Schmitt v. Schnell, I4
Ohio C. C. I53; Stark v. Duvall, 7 Oklahoma, 2I3; Zuck v. McClure, 98 Pa. 54I;
Hocking v. Hamilton, I58 Pa. I07; Mountjoy v. Metzger, 9 Phila. io; Burke v.
Shaver, 92 Va. 345; Lee v. Mutual, etc. Assoc., 97 Va. I6o; Davis v. Grand Rapids,
etc. CO., 41 W. Va. 7I7.
6 Daniels v. Newton, I I4 Mass. 530; Carstens v. McDonald, 38 Neb. 858; King
Waterman, 55 Neb. 324; Parker v. Pettit, 43 N. J. L. 5I2, 517; Stanford v. Mcg
6 N. Dak. 536.

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 434 HARVARD LAW REVIEW.

the question is still undecided,1 so that the final outcome in Amer-

ica is not yet certain.
The reasoning in Hochster v. De la Tour,2 already adverted to,
illustrates a distinction, which it is important to observe - the
distinction between a defence and a right of action. This seems
obvious, but it is frequently lost sight of, as it was in that case.
Every consideration of justice requires that repudiation or inabil-
ity to perform should immediately excuse the innocent party from
performing, nor is any technical rule violated if the excuse is al-
lowed. But it does not follow from this that he has an immediate
right of action. It is a consequence of allowing such an excuse
that when he brings an action he shall not be defeated by reason
of the fact that he himself has not performed, since that failure to
perform was excused by the defendant's fault. But though the
defendant cannot defeat the action on this ground, any other de-
fence is as effectual as ever, and that the action is prematurely
brought is an entirely.different defence.
Another important and frequently neglected distinction is that
between an action for restitution and an action on the contract.
Since repudiation affords immediate cause for rescission it also
entitles an immediate suit for the restitution specifically or in
money equivalent of whatever has been parted with by the inno-
cent party.3 Cases allowing this do not involve the consequence
that an action might be brought at that time on the contract.
Again, it is often thought that to allow a plaintiff to sue and
recover full damages before the time for the completion of all the
defendant's performance is to allow the doctrine of anticipatory
breach,4 yet this is not the case. As soon as a party to a contract
breaks any promise he has made, he is liable to an action. In
such an action the plaintiff will recover whatever damages the
breach has caused. If the breach is a trifling one such damages
cannot well be more than the direct injury caused by that trifling
breach. But if the breach is serious or is accompanied by repudia-

1 The question is referred to but expressly left open in Day v. Connecticut, etc. Co.,
45 Conn. 480, 495; Sullivan v. McMillan, 26 Fla. 543 (but see Thomson v. Kyle, 39
Fla. 582); Maltby v. Eisenhauer, I7 Kan. 308, 3II; Dugan v. Anderson, 36 Md.
567; Pinckney v. Dambmann, 72 Md. I73, I82.
2 2 E. & B. 678.
3 I4 HARVARD LAW REVIEW, 322.
4 Nichols v. Scranton, etc. Co., I37 N. Y. 47 I; Union Ins. Co. v. Central Trust Co.,
I57 N. Y. 633; Hocking v. Hamilton, I58 Pa. I07, illustrate this. These cases are
unquestionably right. They do not involve the question of anticipatory breach, though
in each of them the court seems to have thought so.

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 REP JIDA TION OF CONTRA CTS. 435

tion of the whole contract, it may and frequently will involve as a

consequence that all the rest of the contract will not be carried
out. This may be a necessary consequence of the situation of
affairs or it may result simply from the plaintiff's right to decline
to let the defendant continue performance, since even if all the re-
mainin g performance were properly rendered, the plaintiff would
not get substantially what he bargained for. The plaintiff is
entitled to damages which will compensate him for all the con-
sequences which naturally follow the breach, and therefore to
damages for the loss of the entire contract. This is no different
principle from allowing a plaintiff in an action of tort for personal
injuries to recover the damages he will probably suffer in the
future. If the cause of action has accrued, the fact that the dam-
ages or all of them have not yet been suffered is no bar in any
form of action to the recovery of damages estimated on the basis
of full compensation. This is law where the doctrine of Hochster
v. De la Tour is denied, as well as where it is admitted.'
Under this principle a right of action may accrue by breach of
a subsidiary promise, long before the defendant's main perform-
ance is due, and the subsidiary promise may be an implied one.
In any case where the plaintiff's performance requires the coopera-
tion of the defendant, as in a contract of service or to make some-
thing from the defendant's materials or on his land, the defendant,
by necessary implication, promises to give this cooperation, and if
he fails to do so he is immediately liable though his only express
promise is to pay money at a future day.2 It seems settled, fur-
ther, and perhaps by a fair implication, that there is in every bilat-
eral contract an implied promise not to prevent performance by

1 Mayne on Damages (6th ed.), io6 et seq.; Sutherland on Damages, ?? io8,

113; Pierce v. Tennessee, etc. Co., 173 U. S. I; Strauss v. Meertief, 64 Ala. 299;
Howard Col. v. Turner, 7I Ala. 429; iEtna Life Ins. Co. v. Nexsen, 84 Ind. 347;
Goldman v. Goldman, 5i La. Ann. 76I; Sutherland v. Wyer, 67 Me. 64; Parker v.
Russell, 133 Mass. 74; Cutter v. Gillette, I63 Mass. 95; Girard v. Taggart, 5 S. & R.
I9; Kingv. Steiren, 44 Pa. 99; Chamberlin v. Morgan, 68 Pa. i68; Remelee v. Hall,
3I Vt. 582; Treat v. Hiles, 8i Wis. 280.
The contrary decisions of Lichtenstein v. Brooks, 75 Tex. I96, I 98; Gordon v. Brews-
ter, 7 Wis. 355 (conf: Treat v. Hiles, 8i Wis. 280; Walsh v. Myers, 92 Wis. 397), are
not to be supported.
2 Inchbald v. Western, etc. Co., I7 C. B. (N. S.) 733.
Ford v. Tiley, 6 B. & C. 325, was clearly correctly decided under this principle.
The defendant promised to make a lease to the plaintiff as soon as he should become
possessed of the property, which was then under lease to a third party. Tl--e defend-
ant before the expiration of the prior lease executed ancther to the same lessee, thereby
prevent.ng possession reverting to him at the expiration of the previous lease.

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 436 HA RVARD LAWJ REVIEW.

the other party.1 Such prevention will, therefore, in any case be

an immediate breach of contract, and if of sufficiently serious char-
acter damages for the loss of the entire contract may be recovered.
As countermanding work may have the legal effect of prevention in
this country,2 though it does not involve actual physical preven-
tion, it will be a breach of contract at the time when a stoppage
in the performance of the contract has been caused thereby.3
The time for the defendant's performance is frequently fixed in
a contract, not by naming a definite day, but by some act to be
done by the plaintiff - either a counter-performance or a request.
If the defendant repudiates the contract, it excuses the plaintiff
from doing a nugatory act, and, as in the case of any other condi-
tion which the defendant's conduct excuses, he cannot take advan-
tage of its non-performance.4 He is deprived of nothing thereby,
except what he has indicated a willingness to go without, for he
has said that even if the request be made he will not heed it, or
if the counter-performance be offered he will not accept it. The
case is very different where the defendant promises to pay on a
fixed day, or when an outside event happens. To hold him im-
mediately liable in such an event is to enlarge the scope of his
promise, and entirely without his assent. If he prevented the time
for his performance from coming, his assent might be dispensed
with, but not otherwise.5 The English cases prior. to Hochster

1 Bishop, Contracts, ? I43I; Indian Contract Act, sect. 53. But see Murdock v.
Caldwell, io Allen, 299.
2 See ante, p. 422. 'See, also, Cort v. Ambergate, etc. Ry. Co. 17 Q. B. 12
S Hosmer v. Wilson, 7 Mich. 294; Chapman v. Kansas City, etc. Ry. Co., 146 Mo.
48I.
4 The leading case for this well-settled doctrine is Cort v. Ambergate, etc. Ry. Co.
17 Q. B. 127. A few of the many other cases which might be cited are: Hinckley v.
Pittsburg Steel Co., 121 U. S. 264; Dwyer v. Tulane, etc. Adms., 47 La. Ann. 1232;
Murray v. Mayo, 157 Mass. 248; Canda v. Wick, 100 N. Y. 127.
The distinction here contended for is well brought out in Lowe v. Harwood, 139
Mass. 133. In that case there was a contract for an exchange of real estate. No
time was fixed for performance. Before any tender or demand for performance the
defendant repudiated the contract. Holmes, J., in delivering the opinion of the court,
held that this "not only excused the plaintiff from making any tender and authorized
him to rescind if he chose, but amounted to a breach of the contract. The contract
was for immediate exchange, allowing a reasonable time for necessary preparations.
In the absence of special circumstances, which do not appear, sufficient time had been
allowed, even if any consideration of that sort could not be and was not waived by the
defendant. The case is not affected by Daniels v. Newton, 114 Mass. 530, but falls
within principles that have been often recognized."
6 In Ford v. Tiley, 6 B. & C. 325, the time for performance was to be fixed by the de-
fendant's coming into possession of certain property -an event depending on outside
contingencies, which the defendant prevented from happening as expected. In the

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 REPUDIATION OF CONTRACTS. 437

v. De la Tour,' which are cited in support of the doctrine of an-

ticipatory breach,2 may be satisfactorily explained on these princi-
ples with possibly one exception.8
A great many of the cases are upon contracts of marriage ; 4 and
these cases may well be distinguished. Lord Cockburn said in
Frost v. Knight: "On such a contract being entered into . . .
a new status, that of betrothment, at once arises between the par-
ties." 5 When a man promises to pay money or deliver goods at a
future.day, all he understands, all a reasonable man would under-
stand, is that he will be ready to perform on the day. When a man
promises to marry, his obligation, as he understands it and as it is
understood, is wider, and includes some undertaking as to his con-
duct before the marriage-day. If this be so, marriage with another
than the betrothed is an immediate breach, not directly of the
promise to marry, but of the subsidiary obligation implied from it.
As this breach necessarily involves a loss of the marriage, full
damages could be recovered. Lord Cockburn tries to apply the
same line of reasoning to other contracts, saying, " The promisee
has an inchoate right to the performance of the bargain, which
becomes complete when the time for performance has arrived. In
the mean time he has a right to have the contract kept open as a
subsisting and effective contract. Its unimpaired and unimpeached
efficacy may be essential to his interests." 6 But this is fanciful.

nature of the case, however, a party cannot prevent a day fixed by reference to the
calendar from arriving.
1 2 E. & B. 678.
2 Bowdell v. Parsons, io East, 359; Ford v. Tiley, 6 B. & C. 325; Caines v. Smith,
i S M. & W. I89. In Bowdeli v. Parsons and Caines v. Smith the defendant promised
to perform upQn request, and later by making his own performance impossible ex-
cused the request. As to Ford v. Tiley, see ante. So in Clements v. Moore, i i Ala.
35,- a decision before the days when anticipatory breaches were talked of, the de-
fendant was held liable for breach of a promise to marry on request without a request
on his marriage with another than the plaintiff.
8 Short v. Stone, 8 Q. B. 358. Here the promise was to perform a reasonable time
after request. The defendant, by making his own performance impossible, clearly
dispensed with the necessity of a request as such. It does not seem so clear why he
should forego the " reasonable time." Coleridge, J., avoided the difficulty by a
strained construction of the declaration, holding the promise to mean after request
made within a reasonable time. The other members of the court simply say the
request is dispensed with.
4 Frost v. Knight, L. R. 7 Ex. i i i; Kurtz v. Frank, 76 Ind. 594; Adams v. Byerly,
123 Ind 368; Holloway v. Griffith, 32 la. 409; Sheahan v. Barry, 27 Mich. 217;
Burtis v. Thompson, 42 N. Y. 246; Burke v. Shaver, 92 Va. 345. The distinction
here suggested was referred to in Stanford v. Mcgill, 6 N. Dak. 536.
5 L. R. 7 Ex. iii, II5.
6 L. R 7 Ex. II2, 114.

57

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 438 HARVARD LAW REVIEW.

If true the action should be brought for breach of a promise to have

the contract kept open. If there is such an implied obligation in
any case there should be in case of negotiable paper, for in no other
case is it more important that the promise should not be discred-
ited before the time for performance. Yet it may be doubted if
any court would apply the doctrine to bills and notes.'
The reason most strongly urged in support of the doctrine of
anticipatory breach is, however, its practical convenience. It is
said that it is certain that the plaintiff is going to have an action,
it is better for both parties to have it disposed of at once. It may
be conceded that practical convenience is of more importance than
logical exactness, but yet the considerations of practical conven-
ience must be very weighty to justify infringing the underlying
principles of the law of contracts. The law is not important solely
or even chiefly for the just disposal of litigated cases. The settle-
ment of the rights of a community without recourse to the courts
can only be satisfactorily arranged when logic is respected. But
it is not logic only which is injured. The defendant is injured. He
is held liable on a promise he never made. He has only promised
to do something at a future day. He is held to have broken his
contract by doing something before that day. Enlarging the obli-
gation of contracts is perhaps as bad as impairing it. This may be
of great importance. Suppose the defendant, after saying that he
will not perform, changes his mind and concludes to keep his pro-
mise. Unless the plaintiff relying on the repudiation, as he justly
may, has so changed his position that he cannot go on with the
contract without injury, the defendant ought surely to be allowed
to do this.2 But if the plaintiff is allowed to bring an action at
once this possibility is cut off. "Why," says Fuller, C. J., "should
a locus pwnitentiae be awarded to the party whose wrongful action
has placed the other at such disadvantage ? " 8 Because such is the

1 Benecke v. Haebler, 38 N. Y. App. Div. 344. In Roehm v. Horst, 20 Supr. Ct.

Repr. 780, 786, Chief Justice Fuller distinguishes the case of a note on the ground that
the doctrine of anticipatory breach only applies to contracts where there are mutual
obligations. This has not before been suggested, though in fact the cases where the
doctrine has been applied have been cases of bilateral contracts. Lord Cockburn's
line of reasoning is certainly as applicable to unilateral as to bilateral contracts. It
would be interesting to know what Chief justice Fuller would say to the case of a pro-
missory note given in exchange for an executory promise, or of an instrument contain-
ing mutual covenants, one of which was to pay money on a fixed day, the party bound
to the money payment having repudiated his obligation before it was due.
2 Nilson v. Morse, 52 Wis. 240.
8 Roehm v. Horst, 20 Sup. Ct. Repr. 780, 787.

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 REPUDIATION OF CONTRACTS. 439

contract the parties made. A promise to perform in June does not

preclude changing position in May.'
But not only do logic and the defendant suffer, the very practi-
cal convenience which is the excuse for their suffering is not- at-
tained. A few illustrations from recent cases will show that as at
present applied the doctrine of anticipatory breach is so full of pit-
falls for the unwary as to be objectionable rather than advantageous
practically. The doctrine is thus stated in the last English case
where it was much considered. "It would seem on principle that
the declaration of such intention (not to carry out the contract) is
not in itself and unless acted on by the promisee a breach of con-
tract. . . . Such declaration only becomes a wrongful act if the
promisee elects to treat it as such. If he does so elect, it becomes
a breach of contract, and he can recover upon it as such." 2 The
conception that a breach of contract is caused by something which
the promisee does is so foreign to the notions not only of lawyers
but of business men that it cannot fail to make trouble. If the
promisee, after receiving the repudiation, demands or manifests
a willingness to receive performance, his rights are lost. Not only
can he not thereafter bring an action on the repudiation,3 but " he
keeps the contract alive for the benefit of the other as well as his
own; he remains subject to all his own obligations and liabilities
under it, and enables the other party not only to complete the con-
tract, if so advised, notwithstanding his previous repudiation of
it, but also to take advantage of any supervening circumstance

1 The California Civil Code, ? 1440, provides: " If a party to an obligation

notice to another, before the latter is in default, that he will not perform the same
upon his part, and does not retract such notice before the time at which performance
upon his part is due, such other party is entitled to enforce the obligation without pre,
viously performing or offering to perfom any conditions upon his part in favor of the
former party."
This necessarily implies that if the notice is retracted the obligation cannot be en-
forced without an offer to perform. Yet in California the doctrine of anticipatory
breach, which in effect denies the right of retraction, is followed, and no reference is
made to this section of the Code. The California cases are cited ante, p. 433.
The North Dakota Civil Code has copied in ? 3774 this provision of the California
Code, but the Supreme Court of North Dakota has denied the doctrine of anticipatory
breach. Stanford v. Mcgill, 6 N. Dak. 536.
2 Johnstone v. Milling, i6 Q. B. D. 460, 472, per Lord Bowen. The late authorities
continually refer to the necessity of the promisee acting on the repudiation. What
action is necessary is not stated. It is to be noticed, however, that in Hochster v.
De La Tour, 2 E. & B. 678; Frost v. Knight, L. R. 7 Ex. i i i, and most of the other
cases, there was no manifestation of election other than bringing an action.
8 Zuck v. McClure, 98 Pa. 541; Dalrymple v. Scott, i9 Ont. App. 477.

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440 HARVARD LAW REVIEW.

which would justify him in declining to complete it." I This is a

pretty severe penalty imposed upon the injured party for not
seizing the right moment. When A repudiates his promise, what
is more natural or reasonable than for B to write urging him to per-
form. Yet if B does so, it seems not only does he lose his right of
immediate action, but he is bound to perform his own promise,
though he has reason to expect A will not perform his.2
In Johnstone v. Milling,3 the promissor stated that he could not
get money enough to perform his promise. lie made this state-
ment "constantly in answer to the defendant's direct question,
and at other times in conversation." It was held that this was not
such a repudiation as would justify an action. Lord Esher, M. R.,
made the test, "Did he mean to say that whatever happened,
whether he came into money or not, his intention was not to re-
-build the premises," 4as he had promised, and the other judges
expressed similar views. A distinction between inability and wil-
ful intention not to perform is not of practical value. As far as
the performance of the contract is concerned they are of equal
effect, and should be followed by the same consequences.
In Dingley v. Oler,5 the defendant had taken a cargo of ice
from the plaintiff and agreed to make return in kind the next
season, which closed in September, i88o. In July, i88o, the de-
fendant wrote, "We must, therefore, decline to ship the ice for
you this season, and claim as our right to pay you for the ice in
cash, at the price you offered it to other parties here (fifty cents a
ton), or give you ice when the market reaches that point." At the
time when this letter was written ice was worth five dollars a ton.
One does not need expert testimony to judge what probability there
is of *ce going down before the close of September to one tenth of
the price for which it was selling in July, and yet the court held

1 Frost v. Knight, L. R. 7 Ex. III, 112. Quoted as stating the law in Leake, Cont.
(3d ed.) 752.
2 In accordance with this rule in Dalrymple v. Scctt, i9 Ont. App. 477, the plaintiff
lost his case. The defendant had repudiated the contract. The plaintiff did not
manifest an election to treat that as an immediate breach, but on the contrary testified
that he would have been willing to have accepted performance after the repudiation.
When the time for performance had passed he brought an action. Judgment was
given for the defendant, because the plaintiff had not performed or offered to per-
form on his part.
3 i6 Q. B. D. 460.
4 Page 468. There were also other grounds of decision to which the present criti-
cism is not intended to apply.
5 117 U. S. 490.

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 REPUDIATION OF CONTRACTS. 44I

the letter constituted no anticipatory breach of contract because the

refusal was not absolute, but " accompanied with the expression of
an alternative intention " to ship the ice " if and when the market
price should reach the point which, in their opinion, the plaintiffs
ought to be willing to accept as its fair price between them." Surely
a man must be well advised to know when he has the right to
regard his contracts as broken by anticipation.
In contracts for the sale of goods when there is a repudiation of
the contract before the time for performance, the question often
arises as to the basis on which the plaintiff's damages are to be
calculated. It is often thought that the decision of this question
turns on whether a breach of the contract is made at the date of
the repudiation or at the date when the goods were to be delivered.
But this is not so. Even though the doctrine of anticipatory
breach is not adopted the plaintiff should, if he knows the contract
is going to be broken, as much as if it has already been broken,'
take any reasonable action to mitigate the damages which the de-
fendant's action will cause, so that the price of the goods at the
time when they should have been delivered will not necessarily be
the sole criterion of the loss. On the other hand, even though the
breach be regarded as havinog occurred at the time of repudiation,
yet it was a breach of a contract to deliver at a later day, and, if
it was not a reasonable thing under the circumstances to take some
action at the earlier day the damages must be calculated on the
basis of the price of the goods at the time when delivery should
have been made. By no reasoning can the contract be treated
as a contract to deliver goods at the date of the repudiation.2
Samuel WEilli xon.

1 This is doubtless contrary to the early cases (Leigh v. Patterson 8 Taunt. 540;
Phillpotts v. Evans, 5 M. & W. 475), but seems in accord with reason and with the
principle of the American cases cited, ante, p. 422.
2 The modern decisions on the point seem to have been made exclusively by courts
which recognize the doctrine of anticipatory breach. Some of these decisions go
very far in requiring the plaintiff to take affirmative action at his own risk. See Browln
v. Muller, L. R. 7 Ex. 319; Roper v. Johnson, L. R. 8 C. P. I67; Roth v. Taysen,
12 T. L. R. 211 (C. A.); Re South African Trust Co., 74 L. T. 769; Ashmore v.
Cox, [I899] I Q. B. 436; Roehm v. Horst, 20 Sup. Ct. Repr. 780.

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