The time for the defendant's performance is frequently fixed in a contract, not by naming a definite day, but by some act to be done by the plaintiff - either a counter-performance or a request. If the defendant repudiates the contract, it excuses the plaintiff from doing a nugatory act, and, as in the case of any other condition which the defendant's conduct excuses, he cannot take advantage of its non-performance.20 He is deprived 207 N. Y. 377, 101 N. E. 162, 49 L. R. A. (N. S.) 922; Miilan v. Bartlett, 09 W. Va. 166, 71 S. E. 13.

In United States v. Behan, 110 U. S. 338, 346, 28 L. Ed. 168, 4 Sup. Ct. 81, the court said: "The wilful and wrongful putting an end to a contract, and preventing the other party from carrying it out, is itself a breach of the contract for which an action will lie for the recovery of all damage which the injured party has sustained." It should be noted that this statement was made before the Supreme Court had accepted the doctrine of anticipatory breach. See also Indian Contract Act, Sec. 53, and supra, Sec. 677. But see Murdock v. Caldwell, 10 Allen, 299.

16 See supra, Sec. 1298. See also Cort v. Ambergate, etc., Ry. Co., 17 Q. B. 127, 145.

17 Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Chapman v. Kansas City, etc., Ry. Co., 146 Mo. 481, 48 S. W. 646.

18 See infra, { 1328.

19 Ibid.. This is recognised and the conclusion cheerfully accepted by L. Hand, J., in Equitable Trust Co. v. Western Pac. R., 244 Fed. 485, 501 (aff'd. 250 Fed. 327, 162 C. C. A. 397, 246 U. S. 672, 62 L. Ed. 932, 38 S. Ct. Rep. 423); but it may be doubted whether most courts would go so far. See infra, { 1328.

20 The leading case for this well-settled doctrine is Cort v. Ambergate, etc., Ry. Co., 17 Q. B. 127. A few of of nothing thereby, except what he has indicated a willingness to go without, for he has said that even if the request be made he will not heed it, or if the counter-performance be offered he will not accept it. The case is very different where the defendant promises to pay on a fixed day, or when an outside event happens. To hold him immediately liable on such a contract is to enlarge the scope of his promise, and entirely without his assent. If he prevented the time for his performance from coining, his assent might be dispensed with, but not otherwise.21 The English cases before Hochster v. De La Tour,22 which are cited in support of the doctrine of anticipatory breach,23 may be satisfactorily explained on these principles with possibly one exception.24 the many other cases which might be cited are: Hinckley v. Pittsburg Steel Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; Dwyer v. Tulane, etc., AdWs, 47 La. Ann. 1232, 17 So. 796; Brackett v, Knowlton, 109 Me. 43, 32 AtL 436; Murray v. Mayo, 157 Mass. 248, 31 N. E. 1063; Canda v. Wick, 100 N. Y. 127, 2 N. E. 381. The distinction here contended for is well brought out in Lowe v. Harwood, 139 Mass. 133, 29 N. E. 538. In that case there was a contract for an exchange of real estate. No time was fixed for performance. Before any tender or demand for performance the defendant repudiated the contract. Holmes, J., in delivering the opinion of the court, held that this "not only excused the plaintiff from making any tender and authorized him to rescind if he chose, but amounted to a breach of the contract. The contract was for immediate exchange, allowing a reasonable time for necessary preparations. In the absence of special circumstances, which do not appear, sufficient time had been allowed, even if any consideration of that sort could not be and was not waived by the defendant. The case is not affected by Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384, but falls within principles that have been often recognized."

21 In Ford v. Tiley, 6 B. & C. 325, the time for performance was to be fixed by the defendant's coming into possession of certain property - an event depending on outside contingencies, which the defendant prevented from happening as expected. In the nature of the case, however, a party cannot prevent a day fixed by reference to the calendar from arriving.

22 E. & B. 678.

23 Bowdell v. Parsons, 10 East, 359; Ford v. Tiley, 6 B. & C. 325; Caines v. Smith, 15 M. & W. 189. In Bowdell v. Parsons and Caines v. Smith the defendant promised to perform upon request, and later by making his own performance impossible excused the request. As to Ford v. Tiley, see n. 21. So in Clements v. Moore, 11 Ala. 35 - a decision before the days when anticipatory breaches were talked of - the defendant was held liable without a request, on his marriage with another than the plaintiff, for breach of a promise to marry on request.

24 Short v. Stone, 8 Q. B. 358. The promise was to perform within a reasonable time after request. The defendant, by making his own performance be essential to his interests."27 But this is fanciful. If true the action should be brought for breach of a promise to have the contract kept open. If there is such an implied obligation in any case there should be in case of negotiable paper, for in no other case is it more important that the promise should not be discredited before the time for performance. Yet it may be doubted if any court would apply the doctrine to bills and notes.28