It is stated in the decisions that in order to give rise to an anticipatory breach of contract the defendant's refusal to perform must have been positive and unconditional.86 In Ding-ley v. Oler,37 the defendant had taken a cargo of ice from the plaintiff and agreed to make return in kind the next season, which closed in September, 1880. In July, 1880, the defendant wrote, "We must, therefore, decline to ship the ice for you this season, and claim as our right to pay you for the ice in cash, at the price you offered it to other parties here (fifty cents a ton), or give you ice when the market reaches that point." At the time when this letter was written ice was worth five dollars a ton. One does not need expert testimony to judge what probability there is of ice going down before the close of September to one-tenth of the price for which it.is selling in July, and yet the court held the letter constituted no anticipatory breach of contract because the refusal was not absolute, but " accompanied with the expression of an alternative intention" to ship the ice "if and when the market price should reach the point which, in their opinion, the plaintiffs ought to be willing to accept as its fair price between them." Surely a man must be well advised to know when he has the right to regard his contracts as broken by anticipation. So it is said that a mere threat to abandon a contract will not amount to a breach,38 and' 'a mere assertion that the party will be unable to or will refuse to perform his contract is not sufficient."39 One might think a mere assertion that the party will refuse to perform his contract was a pretty definite repudiation. But surely, though it is not a breach of contract to say before the time for performance, " I do not think that I shall perform/' it would be a valid excuse to the other party, justifying him in failing to begin or to continue performance.40 A party to a contract is under no obligation in reply to inquiries to state his intentions concerning the performance of his future duties under a contract.41
Newspaper Assoc., 237 Fed. 547, 150 C. C. A. 429, the court said: "It must be borne in mind that the defendant never at any time retracted what was stated in the telegram of February 7th, the letter of February 11th, or the Tammen telegram of March 10, 1911. The evidence shows that the defendant intended, if it was possible, to end the contract, and its president so testified. It never by declaration or act changed its position after sending the telegrams and letter above mentioned. To act on the refusal of the defendant to perform the contract so far as the rights of the defendant were concerned, leaving out of consideration for the present the effect, if any, that the notice of March 11, 1911, would have upon the same, was the same on March 10, 1911, as it was on February 7 or 11, 1911. The defendant had not placed itself in any different position than it occupied on those dates.1'
36 See especially Johnstone v. Milling, 16 Q. B. D. 460; Wells v. Hartford Manilla Co., 76 Conn. 27, 55 Atl. 599; Listman Mill Co. v. Dufresne, 111 Me. 104, 88 Atl. 354; National Contracting Co. v. Hudson River Water Power Co., 110 N. Y. App. D. 133, 97 N. Y. S. 92; Vittum v. Estey, 67 Vt. 158, 31 Atl. 144; Provident Sav. L. Assur. Soc. v. Ellinger (Tex. Civ. App.), 164 S. W. 1024; Swiger v. Hayman, 56 W. Va. 123, 48 S. E. 839, 107 Am. St. Rep. 899.
37 117 U. S. :M, 29 L. Ed. 984, 6 Sup. Ct. 850.