To be sure it frequently makes little practical difference whether this is the case or whether the contract is in fact rescinded. Where the only question that arises is in regard to the liability of a defendant for his refusal to perform the result is the same whether the whole contract is rescinded or whether it still subsists subject to a defence on the part of the defendant. But if the defendant seeks by counter-claim or cross-action to establish a right on his part to damages, his success depends on the existence of the contract. And more than one court has been led into the error of holding that no such right of action existed - that a voluntary exercise of the right to refuse to continue performance necessarily involved a total termination of the contract.66 Citations need not be multiplied to prove the error of the foregoing statement and the right of the plaintiff to cease performance upon the defendant's repudiation and yet sue upon the contract.67 In this respect an ordinary bilateral also the remarks of Bowen, L. J., in that repudiation was equivalent to an Boston Ac. Go. v. Ansell, 39 Ch. D. 339,365.
66 Cox v. McLaughlin, 54 Cal. 605; Porter v. Arrowhead Reservoir Co., 100 Cal. 500, 502, 35 Pac. 146; Palm v. Ohio, etc., R. Co., 18 111. 217; Howe v. Hutchison, 105 111. 501; Lake Shore, etc., Ry. Co. v. Richards, 32 N. £. Rep. 402 (111. Sup. Ct. 1892. But see s. c. reversed on rehearing 152 111. 59, 80, 82); Chicago Title & Trust Co. v. Sagola Lumber Co., 242 111. 468, 90 N. E. 282; Jones v. Mial, 79 N. C. 164. These cases hold that though a serious breach of contract will justify the other party in treating the contract as rescinded and so refusing to continue to perform, yet at least unless the breach amounts to actual prevention the party aggrieved cannot, if he ceases to perform, sue on the contract. The first California decision was chiefly based on the early Illinois case. So in Hochster v.DeLa Tour, 2 E. A B. 678, counsel for the defendant, though their case did not require it, based their whole argument on the assumption offer to rescind, and that if the ga-grieved party did not continue to hold himself ready and willing to perform he could not sue upon the contract.
In Bethel 0. Salem Improvement Co., 93 Va. 354, 25 S. £. 304, 33 L. R. A. 602, 57 Am. St. Rep. 808, also, the plaintiff was not allowed to recover for loss of profits, after having ceased to perform owing to the defendant's breach of contract. See also Beatty v. Howe Lumber Co., 77 Minn. 272, 79 N. W. 1013.
67 Mayne's Case, 5 Coke, 206 (3d Resolution); Cort v. Ambergate, etc., Ry. Co., 17 Q. B. 127; Ripley v. McClure, 4 Ex. 345; Marshall 0. Mackintosh, 78 L. T. 750; Leeson v. North British Oil, Ac. Co., Ir. R. 8 C. L. 309; Anvil Mining Co. 0. Humble 153 U. S. 540,38 L. Ed. 814; McElwee v. Bridgeport Land, Ac. Co., 54 Fed. 627, 4 C. C. A. 525; Cherry Valley Works v. Florence Ac. Co., 64 Fed. 569, 12 C. C. A. 306; Martin v. Chapman, 6 Port. 344; Baldwin v. Marquese, 91 Ga. 404,18 S. E. 309; Weil v. American contract differs from a lease. A landlord who rightfully ejects a tenant68 or a tenant who for just cause surrenders the leased premises,69 though entitled to recover damages suffered by breach of the other party's covenant before the termination of the lease cannot recover damages for the failure to continue the agreed relation till the end of the term unless there is an express covenant in the lease to pay such damages.70