Question is more likely to be made whether breach of contract without repudiation justifies rescission than whether repudiation without actual breach is sufficient. There are many expressions, chiefly in English cases, which seem to mean that repudiation or abandonment of the contract is essential to give rise to the right of rescission. Thus, in Ehrensperger v. Anderson, Parke, B., said, "In order to constitute a title to recover for money had and received, the contract on the one side must not only not be performed or neglected to be performed, but there must have been something equivalent to saying 'I rescind this contract,' . . . a total refusal to perform it, or something equivalent to that, which would enable the plaintiff on his side to say,' If you rescind the contract on your part, I will rescind it on mine.'"82 In accordance with this doctrine it was held that failure by the defendant to remit a bill of exchange did not permit the plaintiff to treat the contract as rescinded and sue in money had and received for restitution of what the defendant had received. In another case 83 the court, and particularly Lord Coleridge, laid stress on the question whether the breach of contract amounted to an "abandonment of the contract or a refusal to perform it on the part of the person so making default; " and in Mersey Steel and Iron Co. v. Naylor, the Earl of Selborne, citing Lord Coleridge's statement, expressed the same view even more explicitly.84 This doctrine,

80 Ballou v. Billings, 136 Mass. 307, 308.

81 P. 300. See also Drake v. Goree, 22 Ala. 400; Cabrera r. Payne, 10 Cal. App. 676, 103 Pac. 176; Smith v. Jaceard, 20 Gal. App. 280, 128 Pac. 1023; Ryan v. Dayton, 25 Conn. 188, 65 Am. Dee. 560; Elder v. Chapman, 176 III. 142, 52 N.E. 10; Festing v. Hunt, 6 Manitoba, 381. But where a contract of service was terminated by the plaintiff's illness before compensation became due under the contract, the court refused to allow recovery on a quantum meruit at an earlier day than that on which the contract required payment. Tebo v. Ballard, 36 Vt. 612.

82 3 Ex. 148, 158. This is quoted in Keener on Quasi-Contracts, 304, as a correct exposition of the law. Similar expressions may be found in Fay v.

Oliver, 20 Vt. 118, 122, 49 Am. Dec. 764.

83 Freeth v. Burr, L. R. 9 C. P. 208, 214. Reliance was placed on earlier expressions in Withers v. Reynolds, 2 B. & Ad. 882, and Jonassohn v. Young, 4 B. & S. 296. See also the language of Coleridge, J., in Franklin v. Miller, 4 A. & E. 599.

84 9 App. Cas. 434, 438. In both Freeth v. Burr and Mersey Steel and Iron Co. v. Naylor, the question was not directly as to the right of rescission, but as to the right of a party to maintain an action on the express contract when himself in default. In both these cases such an action was held maintainable, in part at least, because the default relied on did not show an intention to abandon the whole contract. It seems clear, however, that a default which is not sufficient to warrant the other party in refusing to perform his promise, and is no answer to an action on that promise, will not entitle him to treat the contract as rescinded. These cases may, therefore, be cited in this connection. For a criticism of the doctrine so far as it relates to the sufficiency of the plaintiff's non-performance without repudiation or abandonment of the contract as a defence to an action upon it, see supra, {Sec. 865 et seq.

In some American cases, also, it has been said that mere breach of contract does not justify rescission unless an intention is manifested to be no longer bound by the contract, or unless the wrongdoer has prevented performance by the other party. Monarch Cycle Co. v. Royer Wheel Co., 105 Fed. 324, 44 C. C. A. 523; Wright v. Haskell, 45 Me. 489 (see also Dixon v. Fridette, 81 Me. 122, 16 Atl. 412); West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791; Blackburn v. Reilly, 47 N. J. L. 290,1 Atl. 27,54 Am. Rep. 159; Trotter v. Heckscher, 40 N. J. Eq. 612, 4 Atl. 83; Graves v. White, 87 N. Y. 463; Hubbell v. Pacific Mut. Ins. Co.,

100 N. Y. 41, 47, 2 N. E. 470 (cp. Bogardus v. New York life Ins. Co.,

101 N. Y. 328, 4 N. E. 522); Suber v. Puffin, 1 S. C. 273. Yet it is to be noticed that it is much easier to find cases where such expressions are used, than it is to find cases where it was actually held that a breach so material as to make the partial performance of a contract different in substance from the performance promised was insufficient ground for rescission because no intention was manifested to refuse absolutely to perform in the future. Thus, in spite of the remarks in some New York cases, it was held in Welsh v. Gossler, 89 N. Y. 540, that a contract to ship in May or June might be rescinded for non-performance of this requirement, though there was bo far from an absolute repudiation that shipment was actually made in July and the cargo tendered. TTus though perhaps it is that of the English law to-day,85 both as to the right of the injured party to rescind and his closely connected but different right to refuse further performance himself and nevertheless hold the other party liable on the contract,86 must be regarded as erroneous in principle and unfortunate in practice. It seems to be based in large part on the notion that, in order to justify a rescission of the contract, mutual assent of the parties must be established - an offer by the party in default accepted by the other party.87 In almost any case this can be established only by resorting to the baldest fiction.88 As matter of theory a man who repudiates a contract no more than one who negligently breaks it offers to rescind it, and if he did, his offer could only be construed as expressing a willingness to drop matters as they stood at the time, not with followed in Hill v. Blake, 97 N. Y. 216. See also Mansfield v. New York Central R. R. Co., 102 N. Y. 206, 6 N. E. 386. 85 See in addition to the cases cited in the previous note, Cornwall v. Hen-son, L. R. [1900] 2 Ch. 298; Rhymney Ry. Co. o. Brecon, etc., Ry. Co., 83 L T. Ill; In re Phoenix, etc., Co., 4 Ch. D. 108; Bloomer v. Bernstein, L. R. 0 C.P.588. There are strong expressions to the same effect in Colonial decisions. In Bradley v. Bertoumieux, 17 Victorian L. R. 144, 147, it is said: "A contract broken is not a contract rescinded, and unless one of the parties to the contract clearly intimates his intention not to perform his contract, or his inability to perform it, the other party is not at liberty to rescind the contract." So in Oaten v. Stanley, 19 Victorian L. R. 553, 555. "The point is whether the person who committed the breach meant to abandon the contract." And see, to similar effect, Prendergast v. Lee, 6 Victorian L. R. (Law) 411; Hacker v. Australian, etc., Co., 17 Victorian L. R. 376; Moroney v. Roughan, 29 Vict. L. R. 541; Midland Ry. Co. v. Ontario Rolling Mills, 10 Ont. App. 677. See, however, Mus-ton v. Blake, 11 S. C. New South Wales, 92.

86 See supra, Sec. 865.

87 Thus, Coleridge, J., in Franklin v. Miller, 4 A. & E. 509, says: "The rule is that, in rescinding, as in making a contract, both parties must concur," and, "therefore, the refusal which is to authorise the rescission of the contract must be an unqualified one." See also the reasoning of Lord Esher in Johnstone t>. Milling, 16 Q. B. D. 460, 467. And in an American case it is said: "Where one of the contracting parties absolutely refuses to perform, such refusal . . . will be regarded as equivalent to a consent on his part to a rescission of the contract, and the other contracting party may, if he choose, so treat it, rescind the contract, and if he have done anything under it, may immediately sue for compensation on a quantum meruit." Shaffner v. Killian, 7 111. App. 620. So in Cromwell v. Wilkinson, 18 Ind. 365, 370; Stevens v. Cushing, 1 N. H. 17, 18, 8 Am. Dec. 27; Dow v. Harkin, 67 N. H. 383, 29 Atl. 846, and other cases.

88 The preceding three sentences, originally published in 14 Harv. L. Rev. 318, are quoted with approval in Raftery v. World Film Corp., 180 N. Y. App. D. 477, 479, 167 N. Y. S. 1027.

the addition imposed by the court of making restitution of what he had received.89 And as a practical question the only important consideration is how defective the performance of a contracting party has been or is likely to be, not whether it was negligence or wilfulness on his part that led him to break his promise. In truth rescission is imposed in invitum by the law at the option of the injured party,90 and it should be, and in general is, allowed not only for repudiation or total inability, but also for any breach of contract of so material and substantial a nature as would constitute a defence to an action brought by the party in default for a refusal to proceed with the contract.91 Where no time is fixed by the contract or where time is not of the essence, the injured party may by notice fix a reasonable time after which the contract, if not performed, will be treated as abandoned.92

89 How inadequate any doctrine of mutual consent is to account for even the English cases may be seen from the decision in Clay v. Yates, 1 H. A N. 73. The plaintiff contracted to print for the defendant a second edition of a treatise with a new dedication, which had not then been written. After the treatise was printed the plaintiff discovered that the dedication which had been furnished him was libellous and refused to complete the fulfilment of the contract. He was held entitled to recover for the printing he had done. Here the defendant, so far from assenting to a rescission of the contract, demanded that it should be performed. The plaintiff recovered because the defendant had given ground for, though not assented to, the interruption of the contract.

Rescission by mutual consent is, of course, an entirely possible solution for parties to elect when they are disputing over a contract. Instances of it may be found in Sldllman Hardware Co. r. Davis, 53 N. J. L. 144, 20 Atl. 1080; Deno v. Hereh, 158 Wis. 502,149 N. W. 145. The court found from the conduct of the parties that there had been rescission by mutual consent. See also Vider v. Ferguson, 88 111. App. 136; Hobbe 9. Columbia Falls Brick Co., 157 Mass. 109, 31 N. E. 756; Beal v. Minneapolis, etc.,Co., 84 Mo. App. 539; Swarts v. Narragansett etc. Co., 26 R.

I. 436, 59 Atl. 77, 111. Neither party is entitled to damages in such a case without special agreement. Lamburn v. Cruden, 2 M. & G. 253; Natalissio v. Valentino, 71 N. J. L. 500, 502, 59 Atl. 8; McCreery v. Day, 119 N. Y. 1, 23 N. E. 198, 6 L. R. A. 503, 16 Aim St. Rep. 793; Eames Vacuum Brake Co. v. Prosser, 157 N. Y, 289, 51 N. E. 986; Bailey v. Bourn Rubber Co. (R. I.), 67 Atl. 427; Deno v. Hereh, 158 Wis. 502, 149 N. W. 145. SeeCoyle v. Baum, 3 Okl. 695, 41 Pac. 389. It is true that in several American cases of rescission of a contract of service by mutual assent it has been said that the servant may recover for any services which have been rendered. White v. Gray, 4 111. App. 228; Buroetta v. Maroeline Coal Co., 180 Mo. 241, 79 8. W. 136; Bowdish v. Briggs, 5 N. Y. App. D. 592, 39 N. Y. S. 371. But it is obvious the question is one of fact, what were the terms of the agreement to rescind, and no universal rule of law or even inference of fact can be admitted. Lamburn v. Cruden, 2 M. cV G. 253; Natalissio v. Valentino, 71 N. J. L. 500, 502, 59 Atl. 8

90 Therefore, it will not prevent rescission for breach of contract and recovery of an advance payment that the contract provided that the payment should be returned only if an order was not accepted. Martin v. Cunningham, 231 Mass. 280, 121 N. E. 21.