Frequently by the terms of a contract a promisor is given a period of time at any moment of which he may make the agreed performance. Such a contract will not be broken until the agreed period has elapsed.32 This is true even though the promisor may have made a defective attempt to perform at an earlier day.33 If, however, the conduct of the promisor justifies the promisee in believing that no further performance will be rendered, the promisee is justified in changing his position and thereafter a tender of full performance will be ineffectual.34 Also, a contract to marry is an exception to the general rule. One who has agreed to marry at a future day, and who repudiates his engagement, cannot by retracting the refusal before the day originally agreed upon for the marriage prevent a breach.35 The second offer may be admissible in mitigation of damage,36 though even this is denied when the repudiation of the engagement was made under such circumstances as to make acceptance of a subsequent offer virtually impossible.37 The explanation of these marriage cases may be either that there is a subsidiary obligation between engaged persons which is immediately broken by the first refusal,38 or that the nature of a contract to marry is such that even though there is no immediate breach, the situation is so changed by the first refusal that the case comes within the principle that a justifiable change of position by the promisee precludes a locus pcenitentue.
31 Ripley v. M'Clure, 4 Ex. 345.
32 Levant American Commercial Co. v. Welk, 186 N. Y. App. D. 467, 174 N. Y. S. 303. Thus tender of performance due under an obligation may be made effectively until the close of the day when performance was due. Supra, Sec. 857.
33In Borrowman v. Free, 4 Q. B. Div. 500, the plaintiff agreed on May 7th to sell a cargo of maize to be shipped between the fifteenth of May and the thirtieth of June. A cargo was offered which the defendant refused to take on account of its inferiority. The quality was submitted to arbitration, and the defendant was held justified in his refusal. The plaintiff, however, subsequently, but still within the time fixed by the contract, offered the defendant another cargo of proper quality, and the defendant was held liable for refusing to accept it.
34 Hallwood Cash Register Co. v. Lufkin, 179 Mass. 143, 60 N. E. 473; Traver v. Halsted, 23 Wend. 66.
35 Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275; Corduan v. M'Cloud, 87 N. J. L. 143, 93 Atl. 724, L. R. A. 1915 D. 1190; Stacey v. Dolan, 88 Vt. 369, 92 Atl. 453, Ann. Cas. 1917 A. 650.
When there has been an actual breach of contract the plaintiff's right of action accrues and cannot be defeated by a subsequent offer to perform.39