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, however, the party who is not in default wishes to recover the compensation named in the contract as if he had performed in full, and if the action is brought in a jurisdiction in which the party in default may recover the full contract price,1 it is said to be necessary for him to tender performance.2 If the purchaser has declared that he will not accept the goods which he has agreed to take under an executory contract of sale, the purchaser must tender such goods in order to recover the purchase price,3 even if the action is brought in a jurisdiction in which the full purchase price can be recovered upon making such tender.4 If the party who is not in default is ready and willing to perform and notifies the adversary party of such fact, such renunciation discharges the party who is not in default from his duty of performing or making formal tender of performance of concurrent covenants,5 if he notifies the party in default of his readiness and willingness to perform. Such renunciation does not, however, excuse the adversary party from a readiness and willingness to perform concurrent covenants on his part to be performed, if he wishes to treat the contract as still in effect.6 Readiness and willingness to perform concurrent covenants, and notice thereof to the party in default, is sufficient to enable the party not in default to maintain a suit for specific performance.7
The rule that renunciation by one party does not excuse performance or tender on the part of the party who is not in default, if the latter wishes to recover the compensation named in the contract, does not apply to cases in which the rights of both parties are so fixed that the value of performance on the part of the party who is not in default can be ascertained with certainty and deducted from the amount of the recovery.8 Accordingly, if an insurance company repudiates liability upon a valid contract of insurance, such renunciation discharges the adversary party from the duty of making further payment or tender under the policy.9 Even though the performance,10 which formed the consideration on his part, is not paid or tendered, an action may be brought upon such policy when the loss occurs; and the amount of such premiums or assessments may be deducted from the amount due upon the policy.11
19 Clemmltt v. New York Life Ins. Go., 76 Va. 355.
20 Nutter v. Des Moines Life Ins. Co., 156 la. 530, 136 N. W. 891.
1 See Sec. 2899 and ch. LXXXVII
2 Pate v. Ralston, 158 la. 411, 51 L. R A. (N.S.) 735, 139 N. W. 006.
3 Pate v. Ralston. 158 la. 411, 51
L. R. A. (N.S.) 735, 130 N. W. 006. 4 See Sec. 2800 and ch. LXXXVII.
5 George Wiedemann Brewing Co. v. Maxwell. 78 O. 6. 54, 84 N. E. 505.
6 Longfellow v. Huffman, 40 Or. 486, 90 Pac. 907.
7 George Wiedemann Brewing Co. v. Maxwell, 78 O. S. 54, 84 N. E. 595.