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.
In a few 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it is said that renunciation before performance is due does not amount to breach, but that if such renunciation is not withdrawn when performance is due breach exists.1 The doctrine of breach by renunciation before performance is due, as applying to contracts for the sale of personalty,2 or for the sale of realty,3 is repudiated in some jurisdictions. In some cases in which the courts do not seem to deny the general principle that renunciation before performance is due gives a right of action at once, this principle is not applied to facts which in most jurisdictions would be regarded as. involving the application of such principle.4 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.5 If A and B have entered into a contract by which B is to act as an architect for a certain compensation, A's refusal to permit B to perform has been held not to be, in itself, a breach of such contract; and accordingly a complaint which alleges such contract and such renunciation, but which does not in terms allege non-payment, does not state a cause of action.6
18 Holt v. United Security Life Ins. Co., 74 N. J. L. 795, 11 L. R. A. (N.S.) 100, 67 Atl. 118.
See, however, Greenway v. Gaither, Taney (U. S. C. C.) 227, Fed. Cas. No. 6783.
19 Holt v. United Security Life Ins. Co., 74 N. J. L. 795, 11 L. R. A. (NS.) 100, 67 Atl. 118.
20 American Mfg. Co. v. Klarquist, 47 Minn. 344, 50 N. W. 243; Nichols v. Scranton Steel Co., 137 N. Y. 471, 33 N. E. 561.
2 1 Nichols v. Scranton Steel Co., 137 N. Y. 471, 33 N. E. 561.
22 See Sec. 2908 et seq.
1 Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384; Porter v. Supreme Council, 183 Mass. 326, 67 N. E. 238; Carstens v. McDonald, 38 Neb. 858, 57 N. W. 757; King v. Waterman, 55 Neb. 324, 75 N. W. 830 (obiter); Hixson Map Co. v. Nebraska Post Co., 5 Neb. (unoff.), 388. 98 N. W. 872.
This view was at one time entertained in North Dakota. Stanford v. McGill, 6 N. D. 536, 38 L. R. A 760, 72 N W. 938. This case has been overruled, however, and the majority view has been adopted. Hart-Parr Co. v. Finley, 31 N. D. 130, L. R. A 1915E. 851, 153 N. W. 137.
2 Garstens v. McDonald, 38 Neb. 858, 57 N. W. 757.
3 Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384; King v. Waterman, 55 Neb. 324, 75 N. W. 830.
4 McPherson v. Hattich, 10 Ariz. 104, 85 Pac, 731; Pittman v. Pittman, 110 Ky. 306, 61 S. W. 461.
See also, Maud v. Maud, 33 O. S. 147, in which repudiation by A in his lifetime contract by which certain realty, the consideration for which was furnished by At B and C, was to belong to A for life and to be divided between B and C on A's death, was held not to give to B a right to sue in equity or to recover compensation before A's death.
5 Pittman v. pittman, 110 Ky. 306, 61 S. W. 461.
"Does the fact that the appellee fraudulently represented that he would make the appellant his heir at law, and thus allow him to inherit with his other children his estate, and his declaration now that he does not intend to carry out that contract, precipitate a cause of action? We think not. The appellee might conclude to carry out the contract by making it possible, by will or otherwise, that the appellant should take a share of his estate. If he should do that, then appellant certainly would have no cause of action against his estate for the alleged services or for specific performance. His estate might be large or small at his death, no one at this time being able to tell when he might die or what he might possess at his death. He did not agree that his estate would be of a certain value. The appellee has during his life the right to carry out his contract with the appellant. If he elects not to do so, then, of course, the appellant would have to proceed to recover from his estate the value of the services which he had performed, if he is not entitled to a specific performance of the contract; but we do not decide what will be his rights, if any he may have, at the death of the appellee. This right existing in appellee, to elect what coarse he will pursue with reference to the promise which he made to appellant, prevents a cause of action from arising in favor of appellant before the death of the appellee. Therefore, if the appellant can at any time maintain an action on the alleged contract, the time has not arrived for doing so." Pittman v. Pittman, 110 Ky. 306, 61 S. W. 461.