The English courts have recognized that a plaintiff who fails to use reasonable means to mitigate or at least not to enhance the damages which a defendant is to be called upon to pay, cannot recover such avoidable damages as he may suffer;48
47 See Home Pattern Co. v. W. W. Mertz Co., 86 Conn. 494, 86 Atl. 19; Brady v. Oliver, 125 Term. 595, 147 S. W. 1136, 41 L. R. A. (N. S.). 60, Ann. Cas. 1913 C. 376; Palestine, etc., Co. v. Connally (Tex, Civ. App.), 148 S. W. 1109,
48 Mayne, Damages (7th ed.), 185; Harries v. Edmonds, 1 C. & K 686, 687; Roper v. Johnson, L. R. 8 C. P. 167; Roth v. Taysen (C. A.), 12 T. L. R; 211. Brace v. Calder (C. A.), ]1895[ 2 Q. B. 253. Cf. Blown v. Midler, L. R. 7 Ex. 319; Re South and it is quite possible that Lord Cockburn, in stating as he did the first alternative of a party aggrieved by repudiation of a contract, did not appreciate that his statement justified a violation of that duty.49
It need not be contended that in every case the principle of damages in question will deprive the plaintiff of the right to continue performance of the contract after it has been repudiated. There may be cases where so doing will not needlessly enhance damages, and it is a question of fact in every case whether such enhancement of damage will be caused.50 But one distinction is to be observed, so far as the question here under consideration is concerned, between cases where repudiation or countermand takes place before manufacture or work under the contract has been begun and those where notice is given after work has been done, or manufacture begun by him. Where nothing has been done it will almost always be the proper course for the seller to refrain from doing anything, and the measure of his damages will be simply the profit he would have derived had the contract been carried out.51
Where manufacture has been begun, however, another element must be considered. If work or manufacture is stopped it African Trust Co. (C. A.), 74 L .T. 769.
49 Lord Cockburn's statement is also sometimes repeated by American courts, which would not be likely to enforce it to its logical conclusion. See Fosb, etc., Go. v. Bullock, 50 Fed. 83, 87, 8 C. C. A. 14; Smith v. Georgia Loan Co., 113 Ga. 975, 39 S. £. 410; Strauss v. Meertief, 64 Ala. 299, 307, 38 Am. Rep. 8; Claes, etc., Mfg. Co. v. McCord, 05 Mo. App. 507; Walsh v. Myers, 92 Wis. 397, 66 N. W. 250.
50A possible situation is well illustrated by Southern Cotton Oil Co. v. Heffin, 99 Fed. Rep. 339, 39 C. C. A. 546. The plaintiff had agreed to sell ail the cotton-seed cake and meal its mill produced during a specified year. In the course of the year the defendant repudiated . the contract* The cake and meal was but one product made from perishable raw material by the plaintiff's mill. To stop making the cake and meal would have involved abandoning the manufacture of other products, and would also have involved a violation by the plaintiff of contracts for the sale of oil and other materials. Accordingly the plaintiff was held entitled to recover the difference between the contract price and the market price of the cake and meal manufactured after the notice of repudiation. See also Feick v. Stephens, 250 Fed. 185, 162 C. C. A. 321; Martin v. Meles, 179 Mass. 114, 60 N. E. 397.
51 To refrain from manufacturing the goods might involve in some cases closing a factory at a large loss. In such a case it seems the manufacturer may proceed with the contract, may cause the waste of what he has done, and it is in such cases particularly that it may prove less expensive to continue manufacture and complete the goods for the repudiating buyer rather than to stop performance. But it may be the least expensive course to stop peformance even though a waste is thereby caused. Such waste, however, must be included as part of the damages for which the buyer is liable.52 Also, where a seller or manufacturer is under a duty to more than one person to perform the contract, a countermand by one, as it will not justify breach of contract with the others, should be inoperative.53 If in spite of the buyer's countermand the seller tenders the goods, an acceptance of them, or even a recognition of the contract by taking the goods into his possession, will be an assent to the disregard of the countermand.54