Unquestionably the great weight of American authority, whether rightly or wrongly, accepts the doctrine of anticipatory breach but with some differences from the English law. If the doctrine is to be accepted at all, the modifications which American decisions suggest should certainly be incorporated into it. The rights of a party to a bilateral contract of mutually dependent promises upon an anticipatory repudiation by the other party will then be: (1) To rescind the contract altogether, and if any performance has already been rendered by the injured party, to recover its value on principles of quasi-contract;98 (2) to elect to treat the repudiation as a breach, either by bringing suit promptly, or by making some change of position, or (3), to await the time for performance of the contract and bring suit after that time has arrived. Even if the plaintiff thus elects to wait until the stated time for performance, he will be excused from the necessity of performing or being ready to perform on his own part unless the repudiating party withdraws his repudiation before a change of position by the injured party makes this performance more burdensome. Indeed, the injured party has no right to perform, if, by so doing, damages will be enhanced.99
98 See supra, (Sec. 1454 et aeq.
99 In United Press Ass'n v. National Newspaper Ass'n., 237 Fed. 547, 553, 150 C. C. A. 429, the court stated the alternatives in language substantially that of the court in Lake Shore etc. R. Co. 0. Richards, 152 1U. 59,38 N. £. 773, 30 L. R. A. 33, and other cases: "It is well settled that where one party repudiates a contract, and refuses kmger to be bound by it, the injured party has an election to pursue one of three remedies: First, he may treat the contract as rescinded, and recover upon quantum meruit so far as he has perfumed; second, or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance sue and recover under the contract; third, or he may treat the repudiation as putting an end to the contract for all purposes of performance and sue to recover so far as he has performed, and for the profits he would have realized if he had not been prevented from performing. 6 R. C. L., Sec. 389. There is no difference in the law as to the measure of recovery between anticipatory breaches before the time of the performance of the contract arrives and a refusal to further perform during the performance of the contract, except that the injured party may recover so far as he has performed." This statement, however, includes as a possibility, continuing performance as if there had been no repudiation. As has been seen (Sec. 1208), such a right is not generally allowed in the United States.