One of the first cases relied on as establishing the doctrine of anticipatory breach involved prospective inability to perform because of a lease to a third person of land contracted to be leased to the plaintiff.46 In such a case, however, the inability was caused by a voluntary act of the defendant, and this act indicated intention not to perform as well as inability to perform. Inability, however, may exist without unwillingness to perform. In Johnstone v. Milling,47 though the promisor stated that he could not get money enough to perform his promise, and though he made this statement " constantly in answer to the defendant's direct question, and at other times in conversation/' it was held that this was not such a repudiation as would justify an action. Lord Esher, M. R., made the test, "Did he mean to say that whatever happened, whether he came into money or not, his intention was not to rebuild the premises," 48 as he had promised, and the other judges expressed similar views. A distinction between unexcused inability and wilful intention not to perform is not of practical value. As far as the performance of the contract is concerned they are of equal effect, and should be followed by the same consequences.49