Sec 885a

A promisor, by absolutely putting it out of his power to fulfil a contract entered into by him, may make himself liable, without demand, from the time he thus incapacitates himself, even though the time for performance has not yet arrived.1 He may, for instance, expressly repudiate the contract, in which case he may be at once sued,2 though the other party, if electing to sue immediately for the repudiation, cannot afterwards insist on the performance.3 A party, also, disabling himself by selling to B. an estate he has agreed to convey next month to A., may be sued at once by A.4 And a party disabling himself from marriage to A. (to whom he is engaged), by marrying B., may be sued by A. without prior demand.5 It has also been held that on a contract to sell to the plaintiff all the starch manufactured by the defendant within a year, an action will lie immediately on a breach, without waiting for the expiration of a year.6 - As will be hereafter seen, the delivery of goods may be conditioned on the supply of material by the other party,7 and so of a covenant to repair.8 - "It may also be observed," to adopt the words of a learned federal judge in 1882, "that in contracts for services, for marriage, for deliveries of merchandise, if the principal, before the time for performance arrives, renounces the contract, an immediate action will lie."1 This rule, however, is not applicable to commercial paper, whose maturity cannot in this way be anticipated.2

Party by disabling himself or refusing may make himself liable to suit before day fixed.

1 See 2 Ch. on Cont. 11th Am. ed. 1067, where this topic is fully discussed; and see Johnston V. Caulkins, 1 John. Cas. 116, and cases cited supra, sec 312, 663, 716, on analogous questions. See, also, as sustaining the text, Lovelock V. Franklyn, 8 Q. B. 371; and see New England Ins. Co. V.

Butler, 34 Me. 451; Hammett V. Brown, 60 Ala. 498; Wolf V. Marsh, 54 Cal.

2 Hochster V. De la Tour, 2 E. & B. 678; Avery V. Bowden, 5 E. & B. 714; Wilkinson V. Verity, L. R. 6 C.P. 206.

3 Avery V. Bowden, 5 E. & B. 714: Reid V. Hoskins, 5 E. & B. 729; supra, sec 290.

4 1 Ch. on Cont. 11th Am. ed. 1067: citing 1 Roll. Abr. 248; Co. Litt. 220 b; Ford V. Tiley, 6 B. & C. 325; Trask V. Vinton, 20 Pick. 111; Heard V. Bowers, 23 Pick. 455.

5 Supra, sec 575, 606.

6 Hubbert V. Borden, 6 Whart. 79.

7 Supra, sec 585.

8 Supra, sec 586.

Sec 886

Terms settling time are to be construed according to context. " Forthwith," when used independently, means such promptness as under the circumstances is reasonable.3 On the other hand, where it was provided that bonds should be given mutually within ten days for securing the contract, and the performance was to be "forthwith," it was held that "forthwith" did not mean "immediately," but that the giving of the bonds was a condition precedent to the performance.4 But the delivery of the goods is a condition precedent to payment in a contract which provides that the goods are to be delivered " forthwith," the price to be paid within fourteen days from the date of the contract.5 - Where a manufacturer agrees to deliver goods "as soon as possible" to the purchaser, this was ruled to mean as soon as this could be done in view of the fact that the goods had to be manufactured, and that delivery was to be according to priority. And where a written order by a cooper for iron hoops was sent to the manufacturer on the 30th of November, it was held that it was complied with by a tender in the following February.6 - "Directly," when used by itself, and not as indicating dependence on another event, requires immediate despatch.1 But the strongest terms calling for promptitude will be construed to involve the condition of reasonableness, unless the emergency be such as to make any delay hazardous.1 Even where a bill of sale provided that the payment should be "instantly on demand, and without delay on any pretence whatsoever," this was held not to require a suspension of all other duties so as to hurry off a payment, the debtor, in case of absence, being entitled to reasonable time to receive notice and respond.3

"Forthwith," and similar terms, to be construed according to context.

1 Lowell, J., Dingley V. Oler, 11 Fed. Rep. 373, citing Hochster V. De la Tour, 2 E. & B. 678; Frost V. Knight, L. R. 7 Ex. 111; Howard V. Daley, 61 N. Y. 362; Fox V. Kitton, 19 Ill. 519; Hollo-way V. Griffith, 32 Iowa, 409. See, however, as exhibiting exceptions to rule, opinion of Judge Wells in Daniels V. Newton, 114 Mass. 530. - It does not follow, however, because a party has renounced a contract, thereby enabling suit to be brought on it before its maturity, that damages are to be adjusted to the time of renouncing. If a vendor, for instance, had an option of delivery later, and the price falls at the time of the option, the price at such date is all that the vendee can recover on a suit for damages for non-performance. Ding-ley V. Oler, supra.

2 Ibid.

3 Leake, 2d ed. 839, citing Sullivan ex parte, 36 L. J. B. 1; Hudson V. Hill, 43 L. J. C. P. 273.

4 Roberts V. Brett, 11 H. L. Cas. 337.

5 Staunton V. Wood, 16 Q. B. 638; see Benj. on Sales, 3d Am. ed. sec 687; Isaacs V. Plaster Works, 67 N. Y. 124. As to when payment is conditioned on delivery, see supra, sec 575 et seq.

6 Atwood V. Emery, 1 C. B. N. S. 110; see Hydraulic Engineer Co. V. Mc-Haffie, L. R. 4 Q. B. D. 670; De Oleaga V. West Cumb. Iron Co., L. R. 4 Q. B. D. 472.