This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A breach which goes to the entire performance may relieve the party in default from further liability under the contract except to pay damages occasioned by such breach.1 If the adversary party has already performed his part of the contract fully, such breach fixes the rights of the parties in any event, and the question of the effect of further performance by such party cannot arise. More difficult questions arise when the adversary party, not being himself in default, has still covenants to be performed when the breach occurs. The adversary party cannot ignore the breach, perform the covenants of the contract on his part to be performed and recover the entire contract price as if no breach had occurred.2 This state of facts often exists in breach by renunciation.3 Thus after the owner has repudiated a building contract4 or a contract for constructing a monument5 the contractor cannot continue performance and recover the contract price. If the owner knows that the contractor will not complete the building according to contract, he must either take the building and use reasonable efforts to complete it or abandon it to the contractor; but he cannot let it remain unfinished and increase damages either for deterioration or loss of rental value.6 So if an executory contract for the sale of goods is broken by renunciation the vendor cannot send the goods to the vendee and maintain an action for the contract price.7 So an employe who is wrongfully discharged cannot, by the weight of authority, treat the contract as still in force and continue to tender his services, and recover the installments of his wages as if the contract were still in force.8 After an employer has broken a contract to employ anGther at work in phosphate mines, such other cannot treat the contract as still in force and continue to enter the mine. He may be treated as a trespasser.9 The same principles apply in cases of breach by defective performance. Thus one who accepts and uses defective machinery after knowing of the defects cannot thereby increase damages.10 So if a leaky boiler is furnished under a contract guaranteeing it to be first-class, the vendee cannot continue to use it after knowing of the defect and increase damages.11 Still less can the adversary party continue performance after breach, perform in part, and recover for such partial performance on quantum meruit.12
5 Orr v. Cooledge, 117 Ga. 195; 43 S. E. 527; Lapsley v. Howard, 119 Mo. 489; 24 S. W. 1020.
6 Orr v. Cooledge, 117 Ga. 195; 43 S. E. 527.
7 Avery v. Bowden, 5 E. & B. 714.
8 Pratt v. Mfg. Co., 115 Wis. 648; 92 N. W. 368.
9 McConihe v. B. R., 20 N. Y. 495; 75 Am. Dec. 420.
1 Heiser v. Mears, 120 N. C. 443; 27 S. E. 117; Davis v. Bronson. 2 N. D. 300; 33 Am. St. Rep. 783: 16 L. R. A. 655; 50 N. W. 836; Wando Phosphate Co. v. Gibbon. 28 S. C. 418; 13 Am. St. Rep. 690; 5 S. E. 837; Chicago, etc., Co. v. Barry (Tenn. Ch. App.), 52 S. W. 451.
2 Moline Scale Co. v. Beed, 52 la. 307; 35 Am. Rep. 272; 3 N. W. 96; Collins v. Delaporte, 115 Mass. 159; Butler v. Butler. 77 N. Y. 472; 33 Am. Rep. 648; Stanford v. McGill, 6 N. D. 536; 38 L. R. A. 760; 72 N. W. 938; Danforth v. Walker, 37 Vt. 239; s. c, 40 Vt. 257; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120; 41 Am. St. Rep. 33; 58 N. W. 232.
3 Gibbons v. Bente, 51 Minn. 499: 22 L. R. A. 80; 53 X. W. 756; Davis v. Bronson, 2 N. D. 300; 33 Am. St. Rep. 783; 16 L. R. A. 655; 50 N. W. 836.
4 Gibbons v. Bente, 51 Minn. 499;
22 L. R. A. 80; 53 X. W. 756; Davis v. Bronson, 2 X. D. 300; 33 Am. St. Rep. 783; 16 L. R. A. 655; 50 X. W. 836.
5 Wigent v. Marrs, 130 Mich. 609; 90 X. W. 423.
6 Eaton v. Gladwell, 121 Mich. 444; 80 N. W. 292.
7 Oklahoma Vinegar Co. v. Carter, 116 Ga. 140; 94 Am. St. Rep. 112; 59 L. R. A. 122: 42 S. E. 37S; Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 436; 17 Am. St. Rep. 788; 18 Atl. 1054.
8 See Sec. 1353. 14-12.