Under the rule laid down in the English cases a failure to elect to treat anticipatory repudiation as a breach involves a continuance of the obligations of the contract upon both sides

It is this feature of the English doctrine that is most objectionable practically. As has been seen it involves the right to enhance the defendant's damages, and the American cases generally refuse to follow the English law.80 Another equally unjust consequence of following the English doctrine has not yet so clearly been rejected in the United States. Under the English law if the promisee, after receiving the repudiation, demands or manifests a willingness to receive performance, his rights are lost. Not only can he not thereafter bring an action on the repudiation,81 but "he keeps the contract alive for the benefit of

80 See supra, Sec. 1208.

81 This is involved in the statement of Lord Cockburn, supra, { 1297. See also Dingley v. Oler, 117 U. S. 490, 503, 29 L. Ed. 984, 6 Sup. Ct. 860, quoting from Benjamin on Sale; Zucktr. McClure, 98 Pa. 541; Dalrym-ple v. Scott, 19 Ont. App. 477; Cromwell v. Morris, 34 Dom. L. R. 906, 307. But see Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 164 N. Y. App. D. 477, 160 N. Y. S. 17, 19. The court there said:

"The defendant invokes the rule that, while an anticipatory breach will entitle the party against whom it is made to sue at once for damages without tendering performance, still, in order to do so, he must elect to consider the contract as broken; and he urges that plaintiff's repeated tenders of performance are conclusive evidence that it did not so elect. We do not so understand the rule. It is true that, in order to sue upon an anticipatory breach, the party suing must elect to consider the contract as terminated by the breach; but there is no particular time within which he must make that election, and an offer, or repeated offers, to complete on the contract terms, or on modified terms, unless accepted by the vendee, does not constitute a waiver of the breach. Canda v. Wick, 100 N. Y. 127, 2 N. E. 381; Poel v. Brunswick-Balkean action at any time,84 though he should himself also be free from liability.85

Collender Co., 159 App. Div. 365, 144 N. Y. S. 725."

Ingraham, P. J., dissenting said: "None of these acts which are now relied upon to sustain the claim of an anticipatory breach by the defendant, was relied upon by the plaintiff, for they afterwards made abortive tenders of the rubber, treated the contract as in full force and effect and never, prior to the time that the amendment was made to the complaint, treated the acts of the defendant prior to the time of the refusal as an absolute and unequivocal breach of the contract. It is settled in this state that, for a party to such a contract to avail himself of such a repudiation, it must be adopted by the other party and acted upon by him. Becker v. Seggie, 139 App. Div. 463, 124 N. Y. S. 116; Ga Nun v. Palmer, 202 N. Y. 483, 96 N. E. 99, 36 L. R. A. (N. S.) 922." The Court of Appeals (221 N. Y. 127, 116 N. E. 789) reversed the decision of the Appellate Division of the Supreme Court and partly based its conclusion on similar reasoning to that of Ingraham, P. J. On the facts the decision of the upper court seems sound, since the plaintiff not only failed to manifest an election to treat the repudiation as a breach, but also while performance was still possible, itself imposed unwarranted conditions as the only ones on which the other as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it."82 This is a severe penalty imposed upon the injured party for not seizing the right moment. When A repudiates his promise, what is more natural or reasonable than for B to write urging him to perform. Yet if B does so, it seems not only does he lose his right of immediate action, but he is bound to perform his own promise, though he has reason to expect A will not perform his; as a condition of holding the re-pudiator liable after the time for performance arrives.83 An intermediate case may be supposed where no performance under the contract is due from the injured party until after performance by the repudiator. Here there is no hardship in denying a right of action for the repudiation unless election to treat it as a breach is promptly made; and if the injured party not only fails to make such election but imposes conditions, not warranted by the contract, on his willingness to accept performance from the repudiation he will lose all right to maintain it would perform; but so far as the derision casts discredit on the passage quoted above from the opinion of the majority of the lower court, there is cause for regret. See infra, Sec.1334

82Frost v. Knight, L. R. 7 Ex. Ill, 112. Quoted as stating the law in bate, Contracts (4th ed.), 618.

83 In Avery v. Bowden, 5 E. & B. 714, 728, Campbell, G. J., speaking of remarks made to a ship captain who was acting on behalf of the promisee, aid: "The language used by the defendant's agent before the declaration of war can hardly be considered as amounting to a renunciation of the contract; but, if it had been much stronger, we conceive that it could not be considered as constituting a cause of action after the captain still continued to insist upon having a cargo in fulfilment of the charter party."

In accordance with this rule in Dakymple v. Scott, 19 Ont. App. 477, the plaintiff lost his case. The defendant had repudiated the contract. The plaintiff did not manifest an election to treat that as an immediate breach, but on the contrary testified that he would have been willing to have accepted performance after the repudiation. When the time for performance had passed he brought an action. Judgment was given for the defendant, because the plaintiff had not performed or offered to perform on his part. See also Reid v. Hoskins, 6 E. & B. 953; Smith v. Georgia Ac. Co., 113 Ga. 975, 39 S. E. 410; Shields v. Carson, 102 111. App. 38; Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N. Y. 120, 116 N. E. 789.