Neither where the plaintiff's excuse for his own non-performance is the defendant's actual breach of the contract nor where that excuse is a prospective breach because of repudiation does the plaintiff terminate the contract merely by availing himself of his excuse. The contract still exists, but one party to it has a defence and an excuse for non-performance.64

61See supra, Sec.Sec.813 el sag., and e. g., Hull Coal Co. v. Empire Coal Co., 113 Fed. 256, 258, 51 C. C.A. 213.

62 4 Ex. 345.

63 See supra, Sec.Sec. 875 el seq.

64 Hasler v. West India S. S. Co.,

It may be thought that this statement differs from that of Lord Cockburn's second alternative only in words. Even so, words have their importance. If wrongly used, wrong ideas are sure to follow, and wrong decisions follow wrong ideas. It is a source of serious confusion in the cases that a contract is frequently spoken of as "rescinded" or "put an end to," when in truth one party to the contract has merely exercised his right to refuse to perform because of the wrongful conduct of the other party.65

212 Fed. 862, 129 C. G. A. 382; Bollard v. Eames, 219 Mass. 49, 106 N. E. 584. In Michael v. Hart, [1902] 1 K. B. 482, 490, the Master of the Rolls said: " Where there has been what has been called an anticipatory breach of contract, going to the whole consideration, it has not of itself the effect of rescinding the contract for there must be two parties to a iesassion. It only has the effect of giving the other party to the contract an option to treat the repudiation of the contract as a definitive breach of it, and thereupon to treat the contract as rescinded, except for the purpose of his bringing an action for breach of it. . . On the other hand, he may refrain to treat the contract as rescinded and hold the party repudiating the contract to his obligation when the time fixed for performance arrives."

See also Hayes v. Nashville, 80 Fed. 641, 645, 26 C. C. A. 59; Earnshaw v. Whittemore, 194 Mass. 187, 192, 80 N. . 520; R. H. White Go. v. Remick, 198 Mass. 41, 47, 84 N. E. 113; Bixler v. Finkle, 85 N. J. 77, 88 Atl. 846; Elterman v. Hyman, 192 N. Y. 113, 126, 84 N. E. 937, 127 Am. St. Rep. 862; Interboro Brewing Co. v. Independent Ice Co., 83 N. Y. Misc. 119, 144 N. Y. S. 820, 822; and infra, Sec. 1661.

65 This error is adverted to in Anvil Mining Co. v. Humble, 153 U. 8. 540, 551, 14 Sup. Ct. 876, 38

L. Ed. 814. The plaintiff in that case had ceased to perform because of a breach of contract by the defendant and sought to recover damages. Brewer, J., delivering the opinion of the court, said (p. 551): "It is insisted, and authorities are cited in support thereof, that a party cannot rescind a contract and at the same time recover damages for his [its?] non-performance. But no such proposition as that is contained in that instruction. It only lays down the rule, and it lays that down correctly, which obtains when there is a breach of contract. Whenever one party thereto is guilty of such a breach as is here attributed to the defendant, the other party is at liberty to treat the contract as broken and desist from any further effort on his part to perform; in other words, he may abandon it, and recover as damages the profits which he would have received through full performance. Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrongdoing of the other party has brought about. So Holmes, J., in Daley v>. People's Building Assoc., 178 Mass. 13, 18, 59 N. E. 452, "conduct going no further than the defendant's might not justify even a refusal of further performance of the other side, ... a right which must not be confounded with rescission, and which in some cases is more easily made out." See