The parties to a contract which is wholly executory have a right to something more than a performance of the contract when the time for performance arrives. They have a right to the maintenance of the contractual relation up to that time, as well as to a performance of the contract when due. It is therefore settled, by the great weight of authority, that the renunciation of a contract by one of the parties before the time for performance has come does not discharge the other unless the latter chooses to regard it as a discharge.49 If he chooses, he may so regard it, and at once sue for the breach.60 The discharge is optional with him. In a leading case on this point the defendant had engaged the plaintiff to enter into his service, the employment to commence at a future day, but before that time arrived he wrote the plaintiff that he should not require his services. The plaintiff at once sued for the breach of contract, though the time for performance had not arrived, and the court held that he was entitled to do so. It was said by the court that, "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." 51 And in another case the defendant had agreed to marry the plaintiff upon his father's death, but renounced the contract, and the plaintiff was allowed to sue for the breach during the father's lifetime. "The promisee," it was said, "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." 62
48 Anson, Cont. (4th Ed.) 284, 2S5.
49 Frost v. Knight, L. R. 7 Exch. 1ll; Avery v. Bowden, 5 El. & Bl. 714; Howard v. Daly, 61 N. T. 362, 19 Am. Rep. 2S5; Nilson v. Morse, 52 Wis. 240, 9 N. W. 1; Kadish v. Young, 108 111. 170, 43 Am. Rep. 548; Zuck v. McClure, 98 Pa. 541. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.
50 Hochster v. De la Tour, 2 El. & Bl. 678; Frost v. Knight, L. R. 7 Exch. 1ll; Roper v. Johnson. L. R. 8 C. P. 167; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; Burtis v. Thompson, 42 N. Y. 246, 1 Am. Rep. 516; O'NEILL v. SUPREME COUNCIL A. L. OF H., 70 N. J. Law, 410, 57 Atl. 463, 1 Ann. Cas. 422, Throckmorton Cas. Contracts, 378; Fox v. Kitton, 19 111. 519; Crabtree v. Messersmith, 19 Iowa, 179; Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Chapman v. J. W. Beltz & Sons Co., 48 W. Va. 1, 35 S. E. 1013; Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 81 Am. St. Rep. 302; Mutual Reserve Fund Life Ass'n v. Taylor, 99 Va. 208, 37 S. E. 854. So, also, in executory contracts of sale, if, before the time arrives, the purchaser repudiates the contract, the seller need not tender the goods, but may sue at once for the breach. Roper v. Johnson, supra; Eckenrode v. Chemical Co., 55 Md. 51; Wind-muller v. Pope, 107 N. Y. 674, 14 N. E. 436; Bunge v. Koop,. 48 N. Y. 225, 8 Am. Rep. 546; James v. Adams, 16 W. Va. 245; McCormick v. Basal 46 Iowa, 235; Zuck v. McClure, 98 Pa. 541; Kadish v. Young, 108 111. 170. 43 Am. Rep. 548; Platt v. Brand, 26 Mich. 173. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1219.
The case just mentioned is authority for the statement that the operation of the rule is not affected by the fact that the performance is contingent, for in this case the father may have outlived the plaintiff or the defendant, in which case the time for performance never could arise.
There must, however, be a positive and unqualified renunciation; a mere expression of intention not to perform is insufficient.83 The rule laid down above is subject to limitations:54
(1) The renunciation must deal with so much of the performance to which the contract binds the promisor that an actual breach at the time of performance would operate as a discharge. This point was mentioned in a case in which a tenant claimed damages of his landlord for breach of contract by repudiation of a covenant to rebuild the premises at a period of the tenancy which had not yet arrived. "The contract," it was said, "was the whole lease.
51 Hochster v. De la Tour, 2 El. & Bl. 678. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.
52 Frost v. Knight, L. R. 7 Exch. 111. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.
53 Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 29 L. Ed. 984; Vittum v. Estey, 67 Vt. 158, 31 Atl. 144; Bannister v. Victoria Coal & Coke Co., 03 W. Va. 502, 61 S. E. 338. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.
54 It seems that if the obligation is merely to pay money, renunciation before payment falls due cannot have the effect of an anticipatory breach. See Burtis v. Thompson, 42 N. Y. 246, 1 Am. Rep. 516; Nichols v. Steel Co., 137 N. Y. 471, 33 N. E. 561, 500; Flinn v. Mowry, 131 Cal. 481, 63 Pac. 724, 100G; Benecke v. Haebler, 38 App. Div. 344, 58 N. Y. Supp. 16, affirmed 100 N. Y. 631, 00 N. E. 1107. And it has been held that repudiation by the defendant after full performance by the plaintiff confers no right of action as for an anticipatory breach, on the ground that the defendant might elect to perform. Pittman v. Pittman, 110 Ky. 300, 61 S. W. 461. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.
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." 55
(2) The promisee must treat the renunciation by the promisor as a discharge. If he does not so treat the renunciation, but continues to insist on the performance of the promise, the contract remains in existence for the benefit, and at the risk, of both parties.56 If anything occur, for instance, to discharge it from other causes, the promisor may take advantage of such discharge. A vessel owner agreed with a person, by charter party, that his ship should go to Odessa, and there take on a cargo from such person's agent. The vessel reached Odessa, and her master demanded a cargo, but the agent refused to supply one The master, instead of treating this refusal as a breach of contract, and sailing away, in which event the vessel owner could have sued at once for breach of contract, continued to demand a cargo, and before the running days were out - before, therefore, a breach by nonperformance had occurred - a war broke out, rendering performance of the contract legally impossible. Afterwards, the owner 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 renunciation of the' contract had not been accepted as a breach, the charterer was entitled to the discharge of the contract, which took place upon the declaration of war.57
55 Johnstone v. Milling, 16 Q. B. Div. 4G0. And see Obermyer v. Nichols, 6 Bin. (Pa.) 159, 6 Am. Dec. 439. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.
56 See cases cited supra, note 49. Where the other party had not elected to treat a repudiation as a breach, held that he was not excused for subsequent nonperformance. Smith v. Banking Co., 113 Ga. 975, 39 S. E. 410. Where one party renounces, the other is not bound to sue for a breach before the day fixed for performance arrives, and to have his damages assessed as of the date of the renunciation. Kadish v. Young, 108 111. 170, 43 Am. Rep. 548; Roebling's Sons' Co. v. Fence Co., 130 111. 660, 22 N. E. 518. Cf. Davis v. Bronson, 2 N. D. 300, 50 N. W. 836, 16 L. R. A. 655, 33 Am. St. Rep. 783. But a plaintiff may not after repudiation by the defendant go on with performance, and thereby increase his damages by a useless performance. Clark v. Marsiglia, 1 Denio (N. Y.) 317, 43 Am. Dec. 670; Lord v. Thomas, 64 N. Y. 107; Gibbons v. Bente, 51 Minn. 499, 53 N. W. 756, 22 L. R. A. 80; Collyer v. Moulton, 9 R. I. 90, 98 Am. Dec. 370; Heaver v. Lanahan, 74 Md. 493, 22 Atl. 263; Chicago Bldg. & Mfg. Co. v. Barry (Tenn. Ch. App.) 52 S. W. 451; Peck & Co. v. Corrugating Co., 96 Mo. App. 212, 70 S. W. 160; WIGENT v. MARRS, 130 Mich. 609, 90 N. W. 423, Throckmorton Cas. Contracts, 383. See "Contracts," Dec. Dig. (Key-No.) 313; Cent. Dig. § 1279.
Though the rule as stated above is almost universally recognized, the Massachusetts court has held that a renunciation before the time for performance has arrived does not amount to a breach, that, to render a person liable "for breach of an executory personal contract, the other party must show a refusal or neglect to perform at a time when, and under conditions such that, he is or might be entitled to require performance." 58