As independent promises in a bilateral contract are in effect separate unilateral obligations, a rule which forbids enforcement of anticipatory repudiation as a breach in unilateral contracts also forbids such treatment in case of an independent obligation in a bilateral contract.65 Therefore when a tenant repudiates a lease, the landlord cannot at once sue for future rent.66
64In O'Neill v. Supreme Council, 70 N. J. L. 410, 57 Atl. 463, the doctrine was stated as applicable "where a contract embodies mutual and interdependent conditions and obligations" and the statement was repeated in Samuel v. Super, 85 N. J. L. 101, 88 Atl. 054. See also Washington County o. Williams, 111 Fed. 801, 49 C. C. A. 621; Moore v. Security Trust & Life Ins. Co., 168 Fed. 496, 93 C. C. A. 652; Werner v. Werner, 169 N. Y. App. Div. 9, 154 N. Y. S. 570; McCready v. Lindenbora, 172 N. Y. 400, 65 N. E. 208; Kelly v. Security Mut. L. Ins. Co., 186 N. Y. 16, 78 N. E. 584. See also decisions in the following section. In Equitable Trust Co. v.. Western Pac. Railroad, 244 Fed. 485 (aff'd 250 Fed. 327, 162 C. C. A. 397, 246 U. S. 672, 62 L. Ed. 932, 38 S. Ct. Rep. 423), L. Hand, J., however, denied the validity of this distinction, stating that the basis in principle of the doctrine of anticipatory breach is that every promise by implication includes "an engagement not deliberately to compromise the possibility of performance." The force of this decision, however, is weakened by the assumption that in Central Trust Co. v. Chicago Auditorium, 240 U. S. 581, 36 Sup. Ct. 412, 60 L, Ed. 811, L. R. A, 1917 B. 580, the promisee had wholly performed and that, therefore, the obligation of the bankrupt was unilateral. In fact the contract in question in that case seems to have been executory on both sides.
65 See preceding notes.
66 McCready v. Lindenbora. 172 N. Y. 400, 65 N. E. 208. In Oliver v. Loyden, 163 Cal. 124, 124 Pac. 731, 732, the court said:-
"It is settled by the recent decision in Bradbury v. Higginson, 123 Pac. 797, that the repudiation of a lease by the leasee does not operate at once to mature all the rent reserved in the lease and to enable the lessor to recover, not only the instalments already accrued, but those to accrue in the future. In that case it was said as to this proposition: 'But the proposition cannot be success* fully maintained. It finds no support in the authorities with the exception of a few cases decided in Tionisiana, a jurisdiction which is largely governed by the doctrines of the civil law. The general common-law rule is that rent, as such, is not payable until it falls due under the lease, and this rule is not altered by the fact that the tenant has abandoned the premises and notified the landlord that he will repudiate the lease.
For the same reason a seller of goods in a jurisdiction where, after a wrongful refusal of the goods by the buyer, the seller under an executory contract may treat the goods as the buyer's and recover the full price,67 cannot be allowed this remedy for an anticipatory repudiation by the buyer before an agreed period of credit has expired. The seller may sue at once for damages based on the difference between the market price and the contract price, but he can not recover the full price.68 In a jurisdiction which treats a lease like a bilateral contract with dependent promises,69 a landlord on an anticipatory repudiation of the lease might similarly have the right to recover the difference between the agreed rent and the rental value of the premises.70