(z) Brown v. Johnson, 10 M. & W. 831; King v. Dowdall, 2 Sandf. 181.

(a) Short v. Stone, 8 Q. B. 858.

(b) Lovelock v. Franklyn, 8 Q. B. 371; Ford v. Tiley, 6 B. & C. 325; Bowdell v. Parsons, 10 East, 359.

(c) See New Eng. Mutual F. Ins. Co. v. Butler, 34 Me. 451. But the recent case of Hochster v. De la Tour, 2 Ellis & B. 678, 20 Eng. L. & Eq. 157, goes further in sustaining such an action than any previous case. The action was commenced on the 22d of May, 1852. The declaration stated, that in consideration that the plaintiff would agree to enter the service of the defendant as a courier, on the 1st of June, 1852, and to serve the defendant in that capacity, and travel with him as a courier, for three months certain, from the said 1st of June, for certain monthly wages, the defendant agreed to employ the plaintiff as courier on and from the said 1st of June for three months certain, to travel with him on the continent, and to start with the plaintiff on such travels on the said day, and to pay the plaintiff during such employment the said monthly wages. Averment of an agreement to the said terms on the part of the plaintiff, and of his readiness and willingness to enter upon the said employment, and to perform the said agreement. Breach, that the defendant, before the said 1st of June, wholly refused to employ the plaintiff in the capacity and for the purpose aforesaid, on or from the said 1st day of June or any other time; and wholly discharged the plaintiff from his said agreement, and from the performance of the same, and from being ready and willing to perform the same; and the defendant wholly broke and put an end to his promise and engagement. Held, in arrest of judgment, that, after the refusal of the defendant to employ, the plaintiff was entitled to bring an action immediately, and was not bound to wait until after the day agreed upon for the commencement of performance had arrived. And Lord Campbell, in delivering the judgment of the court, said: "On this motion in arrest of judgment, the question arises whether, if there be an agreement between A and B, whereby B engages to employ A, on and from a future day, for a given period of time, to travel with him into a foreign country as a courier, and to start with him in that capacity on that day. A being to receive a monthly salary during the continuance of such service, B may, before the day, refuse to perform the agreement, and break and renounce it, so as to entitle A, before the day, to commence an action against B to recover damages for breach of the agreement; A having been ready and willing to perform it until it was broken and renounced by B. The defendant's counsel very powerfully contended, that, if the plaintiff was not contented to dissolve the contract, and to abandon all remedy upon it, he was bound to remain ready and willing to perform it till the day when the actual employment as courier in the service of the defendant was to begin, and that there could be no breach of the agreement before that day to give a right of action. But it cannot be laid down as a universal rule, that where, by agreement, an act is to be done on a future day, no action can be brought for a breach of the agreement till the day for doing the act has arrived. If a man promises to marry a woman on a future day, and before that day marries another woman, he is instantly liable to an action for breach of promise of marriage. Short v. Stone, 8 Q. B. 358. If a man contracts to execute a lease on and from a future day for a certain term, and before that day executes a lease to another for the same term, he may be immediately sued for breaking the contract. Ford v. Tiler, 6 B. & C. 325. So 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. Bowdell v. Parsons, 10 East, 359. One reason alleged in support of such an action is, that the defendant has, before the day, rendered it impossible for him to perform the contract at the day. But this does not necessarily follow; for, prior to the day fixed fordoing the act, the first wife may have died; a surrender of the lease executed might be obtained; and the defendant might have repurchased the goods, so as to be in a situation to sell and deliver them to the plaintiff. Another reason may be, that when there is a con•6. Of Notice. *668

Contracts sometimes express that they are to be performed "on notice" generally, or on some specific notice, and notice is then indispensable. (d) In some instances the necessity of notice tract to do an act on a future day, there is a relation constituted between the parties in the mean time by the contract, and that they impliedly promise, that in the mean time neither will do anything to the prejudice of the other, inconsistent with that relation. As an example: a man and woman engage to marry, are affianced to one another during the period between the time of the engagement and the celebration of the marriage. In this very case of traveller and courier, from the day of the hiring till the day when the employment was to begin, they were engaged to each other, and it seems to be a breach of an implied contract if either of them renounces the engagement. This reasoning seems in accordance with the unanimous decision of the Exchequer Chamber, in Elderton v. Emmens, 6 C. B. 160, which we have followed in subsequent cases in this court. The declaration in the present case, in alleging a breach, states a great deal more than a passing intention on the part of the defendant which he may repent of, and could only be proved by evidence that he had utterly renounced the contract, or done some act which rendered it impossible for him to perform it. If the plaintiff has no remedy tor breach of the contract, unless he treats the contract as in force, and acts upon it down to the first of June, 1852, it follows that till then he must enter into no employment which will interfere with his promise 'to start on such travels with the plaintiff on that day,' and that he must then be properly equipped in all respects as a courier for three months' tour on the continent of Europe. But it is surely much more rational, and more for the benefit of both parties, that after the renunciation of the agreement by the defendant, the plaintiff should be at liberty to consider himself absolved from any future performance of it, retaining his right to sue for any damage he has suffered from the breach of it. Thus, instead of remaining idle and laying out money in preparations which must be useless, he is at liberty to seek service under another employer, which would go in mitigation of the damages to which he would otherwise be entitled for a breach of the contract. It seems strange that the defendant, after renouncing the contract, and absolutely declaring that he will never act under it, should be permitted to object that faith is given to his assertion, and that an opportunity is not left to him of changing his mind. If the plaintiff is barred of any remedy by entering into an engagement inconsistent with starting as a courier with the defendant on the first of June, he is prejudiced by putting faith in the defendant's assertion; and it would be more consonant with principle, if the defendant were precluded from saying that he had not broken the contract when he declared that he entirely renounced it. Suppose that the defendant, at the time of his renunciation, had embarked on a voyage to Australia, so as to render it physically impossible for him to employ the plaintiff as a courier on the continent of Europe, in the months of June, July, and August, 1852, according to decided cases the action might have been brought before the 1st of June; but the renunciation may have been founded on other facte to be given in evidence, which would equally have rendered the defendant's performance of the contract impossible. The man who wrongfully renounces a contract into which he has deliberately entered, cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured; and it seems reasonable to allow an option to the injured party, either to sue immediately or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrong-doer. An argument against the action before the 1st of June is urged, from the difficulty of calculating the damages; but this argument is equally strong against an action before the 1st of September, when the three months would expire. In either case, the jury, in assessing the damages, would be justified in looking to all that had happened, or was likely to happen, to increase or mitigate the loss of the plaintiff down to the day of trial."