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.
If a party to a contract repudiates liability under it when the time for performance on his part has arrived or while the other party is performing his part of the contract a breach exists.1 Repudiation of a contract between a partnership and another, if made by one of the partners, discharges the contract.2 If the adversary party has already done everything to be done by him under the terms of the contract, a right of action exists in his favor at once.3 If he has not performed, such breach gives a right of action to the adversary party at once, though he has not performed the covenants of the contract on his part to be performed.4 Breach by renunciation during performance excuses further performance by the adversary party as a condition precedent to recovery on his part.5 Such breach also excuses performance of other acts which by the terms of the contract would have been conditions precedent, which would have to be performed before performance by the adversary party could be required.6 Thus further demand is not necessary to put the party breaking the contract in default even if such demand and tender of performance would otherwise be a covenant concurrent with the covenants of the party breaking the contract.7 Thus under a contract to repurchase certain notes on thirty days' notice, refusal to take such notes when notice is given excuses tender at the end of thirty days.8 So a notice by a railroad company which has agreed to furnish cars that it will not furnish such cars excuses further demand therefor.9 So refusal by one who has agreed to furnish logs to be sawed at a specified price excuses further performance or tender. The fact that the adversary party thereafter sells his mill does not prevent him from recovering damages.10 So a repudiation of a building contract excuses the contractor from the obligation of procuring or attempting to procure the certificate of the engineer as a condition precedent to payment,11 or from reference to arbitration.12 So abandonment of a building contract by the contractor excuses the owner from complying with a clause which requires, as a condition precedent to his taking possession of the building a written certificate of the architect that the contractor is not doing the work satisfactorily, and three days' notice to the contractor.13 So refusal by one who has hired a special train to take it unless the carrier will guarantee arrival at a specified time discharges the carrier for all liability if it repays the money paid under the contract.14 Thus if a contractor who has partly performed a contract to remodel an old building refuses to complete it, a right of action in favor of the owner exists at once.15 So one who has agreed to support another and during performance refuses to furnish support any longer,16 or refuses to furnish support at a reasonable place selected by the obligee, if the latter has the right to select such place,17 breaks such contract and is liable for damages. So a breach exists if he repudiates the obligation of such contract, even if he offers to support the grantor as a matter of charity.18 One who has employed another for a specified time breaks such contract if he discharges such employe without cause during such time, and the employe may sue at once for damages for the entire contract.19 If A accepts employment under a contract to work for one year as employe, and then to be received into partnership for one year, and he is discharged without cause during the first year, A may at once sue for breach of the entire contract.20 It is not necessary for the employe to tender services further or to remain in readiness to perform.21 In cases of breach during performance it is no defense that the work done under the contract has been of no benefit to the party in default.22 Conduct relied upon as renunciation must be unequivocal.23 Thus conduct induced by the belief that the adversary party has himself abandoned the contract cannot be treated as renunciation.24 Renunciation does not exist because of a request for a modification or rescission25 of the contract. To constitute discharge the renunciation must go to the entire contract. A refusal to perform one of several covenants, and one not the vital feature of the contract, is not discharge.26 The party in default cannot, after renunciation during performance, which has been treated by the adversary party as a breach amounting to a discharge, elect to treat the contract as still in force.27
1 Anvil Mining Co. v. Humble, 153 U. S. 540; Edward Hines Lumber Co. v. Alley, 73 Fed. 603; Dobbling v. Ry., 207 Pa. St. 123; 56 Atl. 349.
2 Bryson v. McCone, 121 Cal. 153; 53 Pac. 637; Gross v. Lewis, 54 W. Va. 433; 46 S. E. 174.
3 Hand v. Power Co., 167 N. Y. 142; 60 N. E. 425.
4 Thompson v. Brown, 106 la. 367; 76 N. W. 819; Chapman v.
Ry.. 146 Mo. 481; 48 S. W. 646.
5 See Sec. 1437. McElwee v. Improvement Co.. 54 Fed. 627.
6 Anderson v. McDonald, 31 Wash. 274; 71 Pac. 1037.
7 Loeb v. Stern, 108 111. 371: 64 N. E. 1043: Bigelow v. Ry.. 104 Wis. 109; 80 N. W. 95.
8 Loeb v. Stern, 198 111. 371; 64 N. E. 1043.
9 Bigelow v. Ry., 104 Wis. 109; 80 N. W. 95.
10 Dunn v. Johnson, 33 Ind. 54; 5 Am. Rep. 177.
11 Smith v. Wetmore, 167 N. Y. 234; 60 N. E. 419.
12 Munk v. Kanzler, 26 Ind. App. 105; 58 N. E. 543.
13 George A. Fuller Co. v. Doyle, 87 Fed. 687.
14 Wilcox v. Ry., 52 Fed. 264; 17 L. R. A. 804; 3 C. C. A. 73.
15 Chapman v. Beltz, 48 W. Va. 1; 35 S. E. 1013.
16 Parker v. Russell, 133 Mass. 74; Schell v. Plumb, 55 N. Y. 592.
17 Tuttle v. Burgett, 53 O. S. 498; 53 Am. St. Rep. 649; 30 L. R. A. 214; 42 N. E. 427.
18 Walker v. Walker, 104 la. 505; 73 N. W. 1073.