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 on renunciation by the party in default the party who is not in default may have a decree of specific performance before the time fixed by the contract for performance is a question upon which there is some divergence of authority. It has been held that he may sue at once for specific performance and for such decree,1 although such decree should not order performance on the part of either party before the time fixed therefor by the terms of the contract.2 On the other hand, it has been held that such suit can not be brought until the time fixed by the contract for performance.3 court In the former decision of this ease. Holt v. United Security L. Ins. & T. Co, 74 N. J. L 795, 11 L. R A. (N.S) 100, 67 Atl 118, 12 A & E Ann. Cas 1105. As pointed out in the O'Neill case, when such repudiation occurs, the injured party may, if he desires, rescind the contract in toto, that is, put it at an end as if it had never been made. But, instead of doing this, he may treat the contract as ended merely for purposes of further performance, and hold the wrongdoer liable for the damages sustained by reason of the repudiation. Such is the aspect of the present case." Holt v. United Security Life Insurance & Trust Co., 76 N. J L. 585, 21 L. R. A. (N.S.) 691, 72 Atl. 301.
17 See Sec. 2926 et seq.
I8 Holt v. United Security Life Insurance & Trust Co., 76 N. J. L. 585, 21 L. R. A. (N.S.) 691, 72 Atl. 301.
19 Bridgeport v. Aetna Indemnity Co., 91 Conn. 197, 99 Atl. 566.
1 Miller v. Jones, 68 W. Va, 526, 36 L. R. A. (N.S) 408, 71 S. E. 248.
"Counsel for appellant contend that the suit was prematurely brought; that specific performance could not be had until the time arrived for the complete execution of the contract by the making of a deed by the vendor; that the time for appellee to demand his deed had not arrived. We do not so understand the law. A party to a contract enforceable in equity may sue to establish his rights thereunder as soon as the other contracting party has repudiated it, notwithstanding the 'time for full performance may not have arrived." Miller v. Jones, 68 W. Va. 526, 36 L. R. A. (NS ) 408, 71 S. E. 248.
2 Miller v. Jones, 68 W. Va. 526, 36 L. R. A. (N.S.) 408, 71 S. E. 248.
3 Crosby v. Georgia Realty Co., 138 Ga. 746, 76 S. E. 38 [assuming to distinguish, Miller v. Jones, 68 W. Va. 526, 36 L. R. A. (N.S.) 408, 71 S. E. 248].