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.
Whether renunciation by one party before performance is due is a breach which gives the adversary party a right to sue in damages before the time for such performance has arrived is a question upon which there is considerable difference of judicial opinion. In some cases the doctrine that renunciation by one party before performance from him is due operates as a breach so that the adversary party may, if he sees fit, sue at once for damages, is laid down broadly and without qualification.1 An examination of the authorities shows that the application of this doctrine is generally limited to certain classes of cases: (1) In a contract to intermarry, renunciation by either party before the time for performance operates as such a breach that the adversary party may bring action at once for damages before the time for performance has arrived.2 Thus where A and B agree to intermarry upon the death of A's divorced wife, A's marriage to another woman while his divorced wife is still living is such a breach that B could maintain action at once.3 (2) In a contract for personal services, renunciation by either party before the time for performance has begun gives the other a right to maintain an action at once without waiting for such time of performance to arrive.4 (3) In a contract to deliver goods, renunciation by the vendee before the time for delivery and payment gives the vendor a right to maintain an action at once without waiting for the time at which such delivery was to be made.5 Thus a contract to sell hops6 or stock7 is broken by renunciation before the time of performance arrives, so as to give the adversary party an action for damages thereon. So a contract whereby A agrees to hold certain property for life, with remainder in trust to B, is broken during A's lifetime by renunciation of B's contract so that B can maintain an action thereon at once.8 Such renunciation may entitle the adversary party to a cancellation of the contract in equity.9 In other jurisdictions it is said that renunciation before performance is due does not amount to breach, but that if such renunciation is not withdrawn when performance is due breach exists.10 The doctrine of breach by renunciation before performance is due, as applying to contracts of sale, is repudiated in some jurisdictions. Thus it has been held that renunciation before performance cannot operate as a breach of a contract to sell corn,11 or to purchase flax,12 or to sell13 or buy realty.14 A contract by which one agrees to adopt another and make him his heir has been held not to be broken during- the promisor's lifetime, by his declaration that he does not intend to carry the contract out, as he may yet conclude to do so.15 A contract to pay money at a future time is not within the doctrine of renunciation. If the debtor recognizes his liability under the contract and declares that he will not pay the debt, the creditor has no right of action before the time fixed by the contract for such payment. While there is little direct adjudication on this point, courts which have treated renunciation before performance is due as giving the party not in default a right to treat such renunciation as an immediate breach, and to sue for damages at once, have been careful to indicate that this rule does not apply to money contracts pure and simple.16 Courts which 16 "ln the case of an ordinary money contract, such as a promissory note or bond, the consideration has passed: there are no mutual obligations, and cases of that sort do not fall within the reason of the have refused to recognize the doctrine of breach by anticipation have often placed their refusal on the ground that if such rule was to be recognized at all it must be applied to contracts for the payment of money, pure and simple, a result which it was assumed would be absurd.17 However, on breach of a contract to execute a note payable in the future an action may be maintained before such note would have come due had it been given as agreed upon.18
3 Hinckley v. Steel Co., 121 U. S. 264; Kingman v. Wagon Co., 176 111. 545; 52 N. E. 328; Farwell v. Solomon, 170 Mass. 457; 49 N. E. 738.
4 Hinckley v. Steel Co., 121 U. S. 264.
5 Kingman v. Wagon Co., 176 111. 545; 52 N. E. 328.
6 Farwell v. Solomon, 170 Mass. 457; 49 N. E. 738.
7 Heinlein v. Ins. Co., 101 Mich. 250; 45 Am. St. Rep. 409; 25 L. R. A. 627; 59 N. W. 615.
8 Watson v White, 152 111. 364; 38 N. E. 902
9 Lovell v. Hammond Co., 66 Conn. 500; 34 Atl. 511. (The creditor had agreed to prepare such note, but prepared a note payable on demand, and refused to prepare a three months' note.)
1 Johnstone v. Milling. L. R. 16 Q. B. Div. 460; Cort v. Ry., 17 Q. B. (79 E. C. L.) 127; Danube, etc., Co. v. Xenos, 11 C. B. N. S. 152; Roehm v. Hoist, 178 U. S. 1; affirming, 91 Fed. 345; 33 C. C A. 550; Smoot's Case, 15 Wall. (U. S.) 36; Marks v. Van Eeghen. 85 Fed. 85.3; 30 C. C. A. 208; Edward Hinea Lumber Co. v. Alley. 73 Fed. 603;
19 C. C. A. 599; Foss-Schneider Brewing Co. v. Bullock, 59 Fed. 83; 8 C. C. A. 14; Lake Shore, etc.. Ry. v. Richards, 152 111. 59; 30 L. R. A. 33; 38 N. E. 773; Roebling's Sons v. Fence Co., 130 111. 660; 22 N. E. 518; Kurtz v. Frank, 76 Ind. 594; 40 Am. Rep. 275; McCormick Machine Co. v. Markert, 107 la. 340; 78 N. W. 33; McCormick v. Basal, 46 la. 235; Dugan v. Anderson, 36 Md. 567; 11 Am. Rep. 509; Piatt v. Brand, 26 Mich. 173; Hosmer v. Wilson, 7 Mich. 294; 74 Am. Dec. 716; O'Neil v. Supreme Council. - N. J. L. - ; 57 Atl. 463; Wind-muller v. Pope, 107 N. Y. 674; 14 N. E. 436; Hocking v. Hamilton, 158 Pa. St. 107; 27 Atl. 836; Cobb v. Hall, 33 Vt. 233; Pancake v. Campbell, 44 W. Va. 82; 28 S. E. 719; Davis v. Grand Rapids Co., 41 W. Va. 717; 24 S. E. 630.
2 Frost v. Knight, L. R. 7 Exch.
1ll; Holloway v. Griffith, 32 la. 409; 7 Am. Rep. 208; Trammel v. Vaughan, 158 Mo. 214; 81 Am. St. Rep. 302; 51 L. R. A. 854; 59 S. W. 79; Burtis v. Thompson, 42 N. Y. 246; 1 Am. Rep. 516.
3 Brown v. Odill, 104 Tenn. 250; 78 Am. St. Rep. 914; 56 S. W. 840.
4 Hochster v. De la Tour, 2 El. & Bl. 678.
5 Roehm v. Horst. 17S U. S. 1; Oklahoma Vinegar Co. v. Carter, 116 Ga. 140; 94 Am. St. Rep. 112; 59 L. R. A. 122; 42 S. E. 378; Roeb-ling v. Fence, 130 111. 660; 22 N. E. 518; Unexcelled Fire Works Co. v. Polites. 130 Pa. St. 536: 17 Am. St. Rep. 788; 18 Atl. 1058.
6 Roehm v. Horst. 178 U. S. 1; affirming, 91 Fed. 345; 33 C. C. A. 550.
7 Northrop v. Deposit Co., 119 Fed. 969.
8 Schmitt v. Schnell, 14 Ohio C. C. 153: 7 Ohio C. D. 657.
9 Contract for the sale of land. Holingreen v. Piete. 50 Minn. 27; 52 N. W. 266.
10 Hixson Map Co. v. Post Co. (Neb.), 98 N. W. 872.
11 Carstens v. McDonald. 38 Neb. 858: 57 N. W. 757.
12 Stanford v. McGill, 6 N. D. 536; 38 L. R. A. 760; 72 N. W. 938.
13 King v. Waterman, 55 Neb. 324: 75 N. W. 830.
14 Daniels v. Newton, 114 Mass. 530: 19 Am. Rep. 384.
15 Pittman v. Pittman, 110 Ky. 306; 61 S. W. 461.