§ 2. Forms of discharge by breach. We are now in a position to ask, What are the circumstances which confer the rights just mentioned? What is the nature of the breach which amounts to a discharge? (2) Forms of breach. which those A contract may be broken in any one of three ways: a Modes in party to a contract (1) may renounce his liabilities under it, (2) may by his own act make it impossible that he should rights may fulfil them, (3) may totally or partially fail to perform what he has promised. [*290] Of these forms of breach the first two may take place *while the contract is still wholly executory, i.e. before either party is entitled to demand a performance by the other of his promise. The last can, of course, only take place at or during the time for the performance of the contract. We will therefore deal first with renunciation and impossibility created by the act of one party before and in the course of performance, and then with simple failure in performance. (1) Discharge by renunciation before performance is due. arise. ciation before per The parties to a contract which is wholly executory (i) Renunhave a right to something more than a performance of the contract when the time arrives. They have a right to the formance maintenance of the contractual relation up to that time, as well as to the performance of the contract when due. The renunciation of a contract by one of the parties before the time for performance has come, discharges the other, if he so choose, and entitles him at once to sue for a breach.1 for the benefit of both parties, thus giving X a period for repentance. Kadish v. Young, 108 Ill. 170; Davis v. Bronson, 2 N. Dak. 300. But he cannot thereby increase the damages. Clark v. Marsiglia, 1 Denio (N. Y.), 317; Dillon v. Anderson, 43 N. Y. 231. 1 This is the general rule in the United States. Windmuller v. Pope, 107 N. Y. 674, H. & W. 555; Kurtz v. Frank, 76 Ind. 594, H. & W. 358; Remy v. Olds, 88 Calif. 537; Kadish v. Young, 80 Ill. 170. Contra: Daniels v. Newton, 114 Mass. 530. is due 2 E. & B. 67S. p. 689. Hochster v. Delatour is the leading case upon this subject. A engaged X upon the 12th of April to enter into his service as courier and to accompany him upon a tour; the employment was to commence on the 1st of June, 1852. On the 11th of May A wrote to X to inform him that he should not require his services. X at once brought an action, although the time for performance had not arrived. The court held that he was entitled to do so. • Where there is a contract to do an act on a future day, there is a relation constituted between the parties in the meantime by the contract, and they impliedly promise that in the meantime neither will do anything to the prejudice of the other inconsistent with that relation.' It would seem needless to imply a promise in order to give the plaintiff a right of action. A contract is a contract from the time it is made, and not from the time that performance of it is due; if this is so, it is needless and clumsy to introduce into every contract an implied promise that, up to a certain period of its existence, it shall not be broken. *The sense of the rule is very clearly stated by Knight,L.R. Cockburn, C.J., in a case which goes somewhat fur Frost v. 7 Exch. 114. is a discharge even if perform ance be contingent. L. R.7 Exch. at p. 114. [*291] ther than Hochster v. Delatour. In that case the time was fixed for performance, and before it arrived the defendant renounced the contract. In Frost v. Knight performance was contingent upon an event which might not happen within the lifetime of the parties. A promised to marry X upon his father's death, and during his father's lifetime renounced the contract; X was held entitled to sue upon the grounds explained above. The promisee,' said Cockburn, C.J., ‘has an inchoate right to the performance of the bargain, which becomes complete when the time for performance has arrived. In the meantime 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.' There are two limitations to this rule.1 The first is that the renunciation must deal with the But must entire performance to which the contract binds the go to the promisor. whole performance, 460. In Johnstone v. Milling, a landlord covenanted to repair 16Q. B. D. the premises at a certain period of the tenancy. Before this period arrived he repudiated the covenant, and the tenant at once claimed damages for breach of contract. The Court of Appeal doubted whether the rule in Hochster v. Delatour was applicable to cases where the renunciation did not go to the whole of the contract. 'The contract,' said Lord Esher, M.R., was the whole lease. The covenant in question is a particular covenant in the lease, not going to the whole consideration. If there were an actual breach of such a covenant at the time fixed for performance, such breach would not, according to the authorities, entitle the tenant to throw up his lease. That being so, I do not hesitate to say, though it is not necessary in this case to decide the point, that an anticipatory breach would not entitle him to do so, and that it does not appear to me that he could elect to rescind part of the contract.' 16 Q. B. D. 468. The second is that if the promisee will not accept the renunciation, and continues to insist on the performance of the promise, the contract remains in existence for the benefit and at the risk of both parties, and if any- and must [*292] thing occur to discharge it from other causes, the be treated promisor may take advantage of such discharge. as a discharge.. 714. Thus in Avery v. Bowden, A agreed with X by charter- 5 E. & B. party that his ship should sail to Odessa, and there take a cargo from X's agent, which was to be loaded within a certain number of days. The vessel reached Odessa, and her master demanded a cargo, but X's agent refused to supply one. Although the days within which A was 1 (1) The renunciation must be unequivocal and absolute; (2) it must be so understood and acted upon by the other party; (3) it must terminate the entire contract. Dingley v. Oler, 117 U. S. 490, H. & W. 556; Roebling's Sons Co. v. Lock Stitch Fence Co., 130 Ill. 660; Davis v. Bronson, 2 N. Dak. 300. Avery v. Bowden, 5 E. & B. 714. (ii) Impossibility created entitled to load the cargo had not expired, his agent, the master of the ship, might have treated this refusal as a breach of contract and sailed away. A would then have had a right to sue upon the contract. But the master of the ship continued to demand a cargo, and before the running days were out before therefore a breach by nonperformance had occurred a war broke out between England and Russia, and the performance of the contract became legally impossible. Afterwards A sued for breach of the charter-party, but it was held that as there had been no actual failure of performance before the war broke out (for the running days had not then expired), and as the agent had not accepted renunciation as a breach, X was entitled to the discharge of the contract which took place upon the declaration of war. (2) Impossibility created by one party before performance is due. If A, before the time for performance arrives, make it impossible that he should perform his promise, the effect before per- is the same as though he had renounced the contract.1 formance. Lovelock v. 8 Q. B. 371. [1894] 1 Q.B. 466. A promised to assign to X, within seven years from the date of promise, all his interest in a lease. Before the end of seven years A assigned his whole interest to another person. It was held that X need not wait until the end of seven years to bring his action. [*293] The plaintiff has a right to say to the defendant, You have *placed yourself in a situation in which you cannot perform what you have promised; you promised to be ready during the period of seven years, and during that period I may at any time tender you the money and call for an assignment, and expect that you should keep yourself ready; but if I now were to tender you the money, you would not be ready; this is a breach of the contract.' The recent case of Synge v. Synge affirms this rule. 1 Wolf v. Marsh, 54 Calif. 228, H. & W. 560; United States v. Peck, 102 U. S. 64. (3) Renunciation in the course of performance. nunciation during per If during the performance of a contract one of the (iii) Reparties by word or act openly and clearly refuses to continue to perform his part, the other party is forthwith formance. exonerated from any further performance of his promise, and is at once entitled to bring action.1 In Cort v. The Ambergate Railway Company, Cort 17 Q. B. 127. contracted with the defendant company to supply them with 3900 tons of railway chairs at a certain price. The chairs were to be delivered in certain quantities at specified dates. After 1787 tons had been delivered, the company desired Cort to deliver no more, as they would not be wanted. He brought an action upon the contract, averring readiness and willingness to perform his part, and that he had been prevented from doing so by the He obtained a company. verdict, but the company moved for a new trial on the ground that Cort should have proved not merely readiness and willingness to deliver, but an actual delivery of the chairs. The Court of Queen's Bench held that where a contract was renounced by one of the parties the other need only show that he was willing to have performed his part. 'When there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods. contracted for, gives notice to the vendor not to manufacture any more as he has no occasion for them and will not accept or pay for them, the vendor having been desirous and able to complete the 1 Hale v. Trout, 35 Calif. 229, H. & W. 561; Derby v. Johnson, 21 Vt. 17, H. & W. 568; United States v. Behan, 110 U. S. 338; Lake Shore &c. Ry. v. Richards, 152 Ill. 59. If A is notified by B that the latter renounces the contract, A cannot go on to completion if so doing would increase the damages. Clark v. Marsiglia, 1 Denio (N. Y.) 317, H. & W. 572; Davis v. Bronson, 2 N. Dak. 300; Hosmer v. Wilson, 7 Mich. 294; Tufts v. Lawrence, 77 Tex. 526. |