The uncertainty which marks the boundaries of the doctrine of anticipatory breach is well illustrated by three cases which arose in the States of Massachusetts, New Jersey and New York, respectively, on precisely the same facts. The Legion of Honor, a beneficiary society, issued a number of insurance policies and subsequently undertook by a change in its by-laws to increase the assessment payable by policy holders in order to continue their policies. A holder of an unmatured policy thereupon brought suit against the society in each of the States just mentioned. The courts all agreed that the attempted change of the by-laws involved a repudiation of the terms of the plaintiff's contracts. There, however, the agreement ended. The Massachusetts Court held that the repudiation was not a present breach and that as the doctrine of anticipatory breach was not adopted by the law of Massachusetts, the plaintiff could not recover.71 The New Jersey Court held that the repudiation amounted to an anticipatory breach and in spite of a dictum in an earlier case,72 adverse to giving a right of action on anticipatory repudiation, held the plaintiff entitled to recover 73 The New York Court, though committed by previous judicial statements to the doctrine of anticipatory breach, held that the contract in question was not of such a kind that it could be broken by an anticipatory repudiation.74 In fact it seems clear that there was an actual breach of contract in the cases, and that there was no necessity of discussing anticipatory breach. Though the time for payment of the face of the policies had not arrived, the time for payment of a premium had arrived before the time of suit. That a contract of insurance includes by necessary implication a promise on the part of the insurer to accept premiums at the rate fixed by the original contract seems obvious; and this had indeed been so held by the New York Court of Appeals prior to its adoption of the doctrine of anticipatory breach.75

Nichoks v. Swift, 118 Ga. 922, 45 S. E. 706. Viewing the action as one for rent, it is not distinguishable, in principle, from Tatum v. Acker-man, 148 Gal. 357, 83 Pac. 151, 3 L. R. A. (N. S.) 908,113 Am. St. Rep. 276.'" In this connection also may be considered the decisions in bankruptcy denying proof of unmatured not (wtfra, Sec.1965) if a petition in bankruptcy is to be regarded as equivalent to repudiation (see aupra, Sec.1327).

67 Supra, {1365.

68 In Tatum v. Ackerman, 148 Cal 357,83 Pac. 151,3 L. R. A. (N. S.) 908, 113 Am. St. Rep. 276, 278, the court said: "An atempted repudiation of the contract in toto by the vendee is no waiver of the single stipulation as to credit. The plaintiffs refused to acquiesce in such repudiation and insist that the con tract shall be enforced according to its terms, which they have the right to do, but they have no right to make a new contract for the defendant. If, against the will of the vendee, the contract is to stand, the vendee may still insist that it shall stand according to its terms."

69 See infra, Sec.1403.

70 In re Mullings Clothing Co., 238 Fed. 58, 161 C. C. A. 134, L. R. A. 1918 A. 539, 252 Fed. 667. But see Johnstone v. Milling, 60 Q. B. D. 460.