Most of the American decisions seem indisposed to follow the undesirable lead of the English decisions, holding rather that the repudiation though not taken advantage of as a cause of action is, nevertheless, unless withdrawn, operative as an excuse for the failure of the injured party to perform or to be ready and willing to perform,86 if in fact the injured party was
"Where a party to a contract insists that he is not under legal obligation to perform the contract, and that insistence is coupled with a continuance of his original stand and refusal to perform, the breach is plain, and he cannot successfully take refuge in the plea that he must be excused because the other party urges that the contract be carried out."
84 Landes v. Klopetock, 252 Fed. 89, 164 C. C. A. 201.
85 See the following section.
86 In Tri-Bullion Smelting, etc., Co. v. Jaoobsen, 233 Fed. 646, 649, 147 C. C. A. 454, the court said: "Viewed, however, as an anticipatory breach, the action of Jaoobsen in writing the letter of July 8, 1913, insisting that Tri-Bullion should carry out his contract, did not, in any manner, cure such anticipatory breach by Tri-Bullion. . .
In United Press Assoc, v. National Newspaper Assoc, 237 Fed. 547, 150 C. C. A. 429, the court said: "The refusal of the defendant to perform the contract was without justification or excuse. It now remains to be seen if, under such conditions, the attempt of the plaintiff for about a month to try and get the defendant to perform the contract deprives it of its right to treat the persistent refusal of the defendant to perform it as ending the contract. It is true that the conduct of the plaintiff during the period from February 7 and 11, 1911, to March 10, 1911, kept the contract open for both parties. The defendant could have withdrawn its renunciation, either by an express declaration or by acts inconsistent therewith. It, however, said nothing, and the evidence shows that it was its intention to do nothing, towards continuing the contract. It is true that the plaintiff continued to furnish the service, but the defendant refused to pay for the same, which was the substantial consideration for the contract on the part of the plaintiff. We are of the opinion that on March 13, 1911, it was open to the plaintiff to treat the contract as ended on account of the refusal to substantially perform the same by the defendant."
In Zuck v. McClure, 98 Pa. 541, the court said of a repudiation, that "If not in fact withdrawn it is evidence of a continued intention to refuse performance down to and inclusive of the time appointed for performance."
See also Consumers' Bread Co. v. Stafford County Flour Mills Co., 239 Fed. 693, 152 C. C. A. 527; Rederiak-tiebolaget Amie ». Universal Transp. Co., 250 Fed. 400, 162 C. C. A. 470; Progressive Smelting & Metal Corp. v. Ansonia Foundry Co., (Conn. 1918), 105 Atl. 322; Louisville Packing Co. v. Crain, 141 Ky. 379,132 S. W. 575, 579; Buick Motor Co. v. Reid Mfg. Co., 150 Mich. 118, 113 N. W. 591; Hadfield v. Colter, 103 N. Y. Misc. 474, 170 N. Y. S. 643; Mutual Ac. Assoc, v. Taylor, induced by the repudiation to refrain from performance on his part.87 The situation must not be confused with one where there has been a material breach of contract which does not, however, indicate any intention to renounce or repudiate the remainder of the contract. In such a case the injured party has a genuine election offered him of continuing performance or of ceasing to perform,88 and any action indicating an intention to continue will operate as a conclusive choice; 89 not indeed depriving him of a right of action for the breach which has already taken place,90 but depriving him of any excuse for ceasing performance on his own part. A reasonable man in the position of the injured party would understand this, since the wrongdoer is willing to continue performance; but where the contract is totally renounced there can be no real election be- tween continuation and cessation of performance. The repudiatr has announced that he will not perform and ordinarily maintains this attitude; and the American law though giving the injured party in such a case an election of remedies,91 has not only wisely denied him in most cases the right to continue performance,92 but has refused to regard a continued willingness to receive performance as more than an indication that if the re-pudiator will withdraw his repudiation, but not otherwise, the contract may proceed.