It may also happen that, in the course of performance of a contract, one of the parties may, by word or act, deliberately and avowedly refuse performance on his part. In such a case the other party is exonerated from a continued performance of his promise, and is at once entitled to bring action.59 Illustrations of such a discharge are furnished by those cases in which a person contracts for the manufacture and supply of goods to be delivered in certain quantities at specified dates, and, after delivery of a part, the buyer notifies the seller not to deliver any more. In such a case, in an action by the sellers, in which they averred readiness and willingness to deliver the rest of the goods, and that they had been prevented from doing so by the buyer, it was contended by the buyer that they should show, not merely readiness and willingness to deliver, but actual delivery. The court, however, held the contrary, and stated the principle thus: "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 contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of contract; and * * * he is entitled to a verdict on pleas traversing allegations that he was ready and willing to perform the contract, that the defendant refused to accept the residue of the goods, and that he prevented and discharged the plaintiff from manufacturing and delivering them." 60
57 Avery v. Bowden, 5 El. & Bl. 714. See "Contracts," Dec. Dig. (Key-No.) §318; Cent. Dig. § 1279.
58 Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384. And see Stan ford v. McGill, 6 N. D. 53G, 72 N. W. 938, 38 L. R. A. 760; Carstens v. McDonald, 38 Neb. 858, 57 N. W. 757. Cf. Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.
59 Cort v. Railway Co., 17 Q. B. 127; Textor v. Hutchings. 62 Md. 150; Hosmer v. Wilson, 7 Mich. 293, 74 Am. Dec. 716; Derby v. Johnson, 21 Vt. 17; James v. Adams, 16 W. Va. 245; Clement & Hawkes Mfg. Co. v. Meserole, 107 Mass. 362; Parker v. Russell, 133 Mass. 74; Haines v. Tucker, 50 N. H. 311; McCormick v. Basal, 46 Iowa, 235; Smith v. Lewis, 24 Conn. 624, 63 Am. Dec. 180; Amsden v. Atwood, 68 Vt. 322, 35 Atl. 311; North v. Mallory, 94 Md. 305. 51 Atl. S9; Timmerman v. Stanley, 123 Ga. 850. 51 S. E. 760, 1 L. R. A. (N. S.) 379. And see WIGDENT v. MARRS, 130 Mich. 609, 90 N. W. 423, Throckmorton Cas. Contracts, 383. If a renunciation is treated as a discharge, it may not be withdrawn, even though the time for actual performance has not arrived. Quarton v. American Law-Look Co., 143 Iowa, 517, 121 N. W. 1009, 32 L. R. A. (N. S.) 1. See "Contracts," Dec. Dig. (Key-So.) § 313; Cent. Dig. § 1279. Clark Cont.(3d Ed.) - 36
In this case, however, as in that of a renunciation before performance due, the refusal of further performance must be positive and unequivocal in order to entitle the other party to treat the contract as discharged,81 and a declaration of intention to abandon the contract at a future time is not sufficient, where the party is at the time engaged in performance of the contract.62