While it is ordinarily the case that a party who seeks to rescind or avoid a contract because of a breach of contract or repudiation by the other party has performed at least in part and desires restitution of what he has given or its value, yet it seems to follow that the same course is open to one who has not performed at all. Such a person will not wish ordinarily to, avoid the contract altogether, because that course would deprive him of any right of action whatever. He could seek neither restitution, because he had given nothing, nor compensation in damages for breach of the contract, because he had put an end to the promise on which he must sue. Nevertheless, there are-many cases where the injured party is content merely to terminate his legal relations with the other party to the contract without more. That he may do this is perhaps intimated by Parke, B., in Phillpotts v. Evans;71 it is expressly stated by Crbmpton, J., in Hochsteru. De La Tour,72 where the repudiation preceded the time for performance by either party. It was so decided in King v. Faist.73 There the plaintiff had stated he would not perform unless the defendant gave a guarantee which the contract did not require; whereupon the defendants wrote that they would not perform, and they did not. The plaintiff sued for this failure to perform, but the court held it justified, saying: "Before the defendants were in default under the substituted contract, or had notified him of an intention not to perform it, he himself repudiated it by notifying them that he would not perform it on his part, and thus gave them the right to rescind the contract." 74 Indeed, the numerous cases on anticipatory breach largely base their arguments on the premise that an anticipatory repudiation is an offer to rescind.75 Though this mode of statement is open to objection,76 and when coupled with the statement that the offer includes as part of the proposition that the offeror shall be immediately liable to an action for damages becomes an almost grotesque fiction, the cases on repudiation at least tend to show that the injured party has a right of rescission, whether acquired by mutual assent or (as is the truth) given by the law to the injured party, regardless of the assent of the other. This right may become of great importance if the contract while it exists operates as a threatened liability or a cloud on title. Thus if a contract for the sale of real estate is recorded, the owner has no longer a salable title, and if the purchaser fails to carry out his agreement, the owner, to regain a clear title to his land, will desire the rescission of the contract. In order that there mpy be recorded evidence of this a court of equity will decree the rescission and cancellation of such a contract.77 So one who has given negotiable paper in return for a promise which has been broken is entitled to proceed affirmatively for the rescission of the contract and the surrender of the negotiable paper, lest it should be negotiated by the holder to a bona fide purchaser for value without notice, to whom the maker would be liable.78 And where-ever necessary in order to do justice between the parties the aid of a court of equity may be invoked to decree rescission.79

978; Edge Moor Iron Co. v. Brown etc. Co., 6 Pennew. (Del.) 10,13,4 L. R. A. (N.S.) 858; Britton v. Turner, 6 N. H. 481,495, 26 Am. Dec. 713; Fabbricotti v. Launiu, 3 Sandf. (N. Y.) 743.

70 Impervious Products Co. v. Gray, 127 Md. 64, 96 Atl. 1; Gerii v. Mistletoe Silk Mills, 80 N. J. L. 128, 76 Ail. 335; Regina Co. v. Gately Ftoniture Co., 154 N. Y. S. 888, 171 App. Div. 817, 157 N. Y. 8. 746;

Kaufman v. Levy, 102 N. Y. Misc. 689, 169 N. Y. 8. 454.

71 5 M. & W. 475, 477. See also Grimaldi v. White; 4 Esp. 95.

72 2 E. & B. 678, 685, "When a party announces his intention not to fulfil the contract, the other side may take him at his word and rescind the contract."

" 161 Mass. 449, 37 N. E. 456.

74 Ib. at p. 457. See also Howe v. Smith, 27 Ch. D. 89, 105; Munsey v. Butterfield, 133 Mass. 492; Wartere v. Herring, 2 Jones L. (N. C.), 46.

75 See supra, Sec.Sec. 1297 el seq.

76 See supra, Sec. 1302.

77 Howe v. Hutchison, 105 111. 501; Nelson v. Hanson, 45 Minn. 543, 48 N. W. 410; Kirby ». Harrison, 2 Ohio St. 326, 59 Am. Dec. 677.

78 See Randolph on Commercial Paper (2d ed.), Sec.{ 1686, 1687; Campbell Printing Press Co. v. Marsh, 20 Col. 22, 36 Pac. 799; Duggar v. Demp-sey, 13 Wash. 396, 43 Pac. 357.

79 Neenan v. Otis Elevator Co., 194 Fed. 414, 114 C. C. A. 376; Crowe t>. Oscar Barnett Foundry Co., 213 Fed. 864, 219 Fed. 450, 135 C. C. A. 162.

Sec.1466. Repudiation Without Breach Sufficient

There seems to be no doubt that repudiation without any actual failure to perform the contract is enough to give rise to the right. This point is covered by the remark of Crompton, J., just referred to. So, in a Massachusetts case80 the court say: "Such a repudiation did more than excuse the plaintiff from completing a tender; it authorized him to treat the contract as rescinded and at an end. It had this effect, even if, for want of a tender, the time for performance on the defendants' part had not come, and therefore it did not amount to breach of covenant." And again, "It is clear that, apart from technical considerations, so far as the right to rescind goes, notice that a party will not perform his contract has the same effect as a breach." 81