Judged in the light of every consideration of mercantile convenience the American decisions are correct. The facts of one of the few cases55 which are directly opposed to them need only be stated to illustrate this. The defendant, resident in Illinois, contracted to buy of the plaintiff, resident in New Jersey, 500 tons of barbed wire. After 120 tons had been delivered the defendant requested the plaintiff to stop further shipments, and on the refusal of the latter, telegraphed, "Will not take wire if shipped." Nevertheless, the plaintiff went through the futile and expensive steps of preparing and sending the rest of the wire, and was held entitled to recover damages for so doing.56 $ 1301. Inconsistency of Cockburn's language - True rule.
52 In Chicago v. Greer, 9 Wall. 726, 19 L. Ed. 769, the defendant contracted to buy ten-inch leather hose to be manufactured by the plaintiff. After the leather had already been cut the buyer repudiated the contract. There was no general market for hose of such large size, and the seller, therefore, cut the leather down to the size necessary for making nine-inch hose. This involved waste. The seller was held entitled not only to the profit that would have been made on the contract but also the waste due to cutting the leather down. See also Feick v. Stephens, 250 Fed. 185, 162 C. C. A. 321.
53 Martin v. Melee, 179 Mass. 114 60N.E.397. This point seems to have been overlooked in King v. Rhodes, 47 D. G. App. 316, cert, denied 248 U. S. 560, 39 S. Ct. 7.
54 Trinidad Asphalt Mfg. Go. v. Buckstaff Bros. Mfg. Go., 86 Neb. 623, 126 N. W. 293, 136 Am. St. Rep. 710.
55Roebling'8 Son's Go. v. Lock-Stitch Fence Go., 130 111. 660, 22 N. E. 518. See also Lake Shore, etc., Ry. Go. v. Richards, 152 111. 59, 38 N. E. 773, 30 L. R. A. 33; Chicago Washed Goal Go. v. Whitsett, 278 111. 623, 116 N. E. 115. Cf. Rounsaville v Leonard Mfg. Go., 127 Ga. 735, 56 S. E. 1030.
Lord Cockburn's statement of the plaintiff's second alternative is that "The promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it." The two clauses of this sentence logically contradict each other. If the contract is put an end to, no action can be brought upon it.57 If an action may be bought at once or at any time in the future, it is not put an end to.58 The question of the time when the action should be brought is not immediately essential here, and that question being left for subsequent discussion, it may be laid down as a more logically coherent and more practically useful statement that the promisee may, if he thinks proper, treat the repudiation of the other party as a ground for putting an end to the contract by rescission.59 If this course is adopted no rights under the contract can remain, though a quasi-contractual right to recover the value of anything which has been done will survive. Or the promisee may decline to continue to perform and sue the promisor for his breach of contract.60 Ordinarily, of course, a plaintiff in an action upon a contract cannot succeed if he has himself failed to perform at the proper time; but if that failure to perform was excused by the defendant's own conduct this principle does not apply. The authorities furnish abundant illustration of this when the excuse for the plaintiff's failure to perform consisted of a prior serious breach of the contract by the defendant.
5 6 The Uniform Sales Act adopts in Sec. 94 (4), the prevailing American doctrine:
"(4) If, while labor or expense of material amount are necessary on the put of the seller to enable him to fulfill his obligations under the contract to sell or the sale, the buyer repudiates the contract or the sale, or notifies the seller to proceed no further therewith, the buyer shall be liable to the seller for no greater damages than the seller would have suffered if he did nothing towards carrying out the contract or the sale after receiving notice of the buyer's repudiation or countermand. The profit the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages."
57 Heagney v. J. I. Case Machinery Co., 4 Neb. (Unof.) 746 96 N. W. Rep. 175; McCormick Machine Co. v. Brown, 5 Neb. (Unof.) 366, 98 N. W. Rep. 697; Ward v. Warren, 44 Oreg. 102, 74 Pac. 482. "Rescission" means that both parties to a contract shall be wholly released as though it had not been made. Jones v. McGinn, 70 Or. 236, 140 Pac. 994.
58Speirs v. Union Forge Co., 180 Mass. 87, 92, 61 N. £. 825.
59 See infra, Sec.Sec. 1455 el seq.
60 Supra, Sec. 1303.
The same principle covers the case of repudiation without an actual breach of contract. The reason why the plaintiff must ordinarily have performed in order that he may recover is the same reason which underlies the doctrine of failure of consideration. The mutual performances in a bilateral contract are, barring exceptionaQtfcases, intended to be given in exchange for each other, and if the exchange fails on one side owing to defective performance, the other party may likewise decline to perform. This reason was pretty well hidden during the early development of the doctrine under the terminology of implied conditions, but it is sufficiently apparent at the present day.61
Now, if it be an excuse which will justify a promisor in breaking his promise that his co-contractor has failed to give the performance agreed upon as an exchange, it should likewise be an excuse that the co-contractor has made it plain, as by repudiation, that he will not give such performance when it becomes due in the future. A promisor can no more be expected to perform his promise when he is not going to receive counter-performance than when he actually has not received it. Baron Parke - a judge not likely to stretch too far the rules of the common law in order to work out justice - so held in Ripley v. M'Clure,62 and the law is clearly to that effect.63