When, therefore, Fuller, C. J., of the Supreme Court of the United States, in the leading American decision on the point asserted, "It has always been the law that where a party deliberately incapacitates himself or renders performance of his contract impossible, his act amounts to an injury to the other party, which gives the other party a cause of action for breach of contract,"85 it must, with deference be said that the learned judge was mistaken. The mistake is perhaps more pardonable than it would otherwise be, had not an English court fallen into the same error. In Ford v. Tiley,86 Bayley, J., in delivering the opinion of the court, draws the conclusion from some of the old authorities above referred to "that where a party has disabled himself from making an estate he has stipulated to make at a future day, by making an inconsistent conveyance of that estate, he is considered as guilty of a breach of his stipulation, and is liable to be sued before such day arrives." 87 This was not, so far as appears, necessary to the decision of the case. The decision seems to have been correct, as will presently be shown, but Bayley's remark is noteworthy as the first statement in the English books authorizing the idea that an action may be brought on a promise before it is broken. It is to be noticed that this remark is confined to the case of an estate, and is not made as laying down a general principle of the law of contracts.88
84This is neatly proved by an extract from the case of Hoe v. Marshall, Cro. Eliz. 579, 580, S. C. Goldsb. 167, 168. The reader should firet be reminded that in our early law a release of a claim or debt was treated as a conveyance and that consequently a release could not be made of a possible future claim (see infra, Sec. 1823), and further that the word "obligation" here as always in the early books means a bond with condition. "If one covenants to infeoff me before Michaelmas, a release of all actions before Michaelmas is no bar to an action of covenant brought after Michaelmas, for there was not any cause of action at the time of the release made. But if an obligation be for the performance of that covenant, a release of all actions is a discharge of that bond, for it was a duty defeasible." That is, the bond created an immediate liability as soon as it was made, and the condition operated as a defeasance.
85 Roehm v. Horst, 178 U. S. 1,18 44 L. Ed. 953, 20 Sup. Gt. 780. It is also stated in the opinion (p. 8) that this was "not disputed." If so, the counsel for the defendant conceded more than they should.
86 6 B. & C. 325 (1827). But the error is pointed out, though perhaps not conclusively shown, in the able opinion of Wells, J., in Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384. It is also adverted to in the argument of counsel for the defendant in Short v. Stone, 8 Q. B. 358, 364, and in Lovelock v. Franklyn, 8 Q. B. 371, 376.
87 6 B. & C. 325, 327.
Where the owner of specific property agrees to sell it at a future day, it is certainly much easier to imply a promise that he will not otherwise dispose of it in the meantime, than it is to imply a promise in every contract not only to do but to say nothing inconsistent with the principal promise. But would a court, it may be asked, grant specific performance on January 1, of a contract to convey Blackacre the following July, on the ground that the defendant had been guilty of an anticipatory repudiation on the earlier day? 89 If such repudiation is an actual breach justifying an action at law, there seems no reason why a suit in equity should not be maintainable. Certainly no decree would require performance before July 1, and it would at least be made clear that repudiation does not accelerate the obligations of a contract.