So the matter stood in 1852 when the case of Hochster v. De La Tour94 was decided.. In that case the plaintiff had entered into a contract with the defendant to serve him as a courier for three months beginning June 1,1852. On May 11, the defendant wrote to the plaintiff declining his services. The action was begun May 22, and, after a verdict for the plaintiff, objection was taken that the action was prematurely brought. Counsel for the defendant, however, argued - unnecessarily so far as the immediate case was concerned - that the plaintiff, having taken other employment, had terminated the contract. Lord Campbell, in delivering the opinion of the court in favor of the plaintiff, showed that the situation would be unfortunate if the plaintiff, as a condition of getting a right of action, must decline other employment and hold himself ready to perform until June 1. From this, apparently misled by the argument of counsel. Lord Campbell drew the conclusion that the plaintiff must have an immediate right of action; and also drew the conclusion from the earlier cases already referred to95 that incapacity before the time for performance had already been settled by decision to be a breach, neglecting to notice the distinction, hereafter adverted to,96 between a promise to perform on a fixed future day and on a day which the injured party has a right to fix at any time in the present or future.
92 Phillpottts v. Evans, 5 M. & W. 475, 477 (1830): "I think no action would then have lain for the breach of the contract, but that the plaintiffs were bound to wait until the time arrived for delivery of the wheat, to tee whether the defendant would then receive it. The defendant might then have chosen to take it, and would have been guilty of no breach of contract, for all that he stipulates for is that he will be ready and willing to receive the goods, and pay for them, at the time when by the contract he ought to do so. His contract was not broken by his previous declaration that he would not accept them; it was a mere nullity, and it was perfectly in his power to accept them, nevertheless; and, vice versa, the plaintiffs could not sue him before."
In Ripley v. M'Clure, 4 Ex. 345 (1849), Parke reiterated his statement that a notice before the time for performance could not be a breach of contract, but held that it might excuse the other party from continuing to perform.
93Lovelock v. Franklyn, 8 Q. B. 371, 378 (1846): "This distinction shows that the passage cited from Lord Cokeis inapplicable. That proves no more on the point now before us than that, if an act is to be performed at a future time specified, the contract is not broken' by something which may merely prevent the performance in the meantime." As Lord Denman had immediately before taken part in the decision of Short v. Stone, 8 Q. B. 358, it may be assumed he did not regard that decision as inconsistent with his later remarks.
In Thomson v. Miles, 1 Esp. 184, Lord Kenyon had said that it had been solemnly adjudged that if a party sells an estate without having title, but before he is called upon to make a conveyance, by a private act of Parliament, gets such an estate as will enable him to make a title, that is sufficient.
See also Alexander v. Gardner, 1 Bing. N. G. 671, 677, per Tindal, C. J.
94 2 E. & B. 678.