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 order to elect to treat the contract as discharged by renunciation in advance, the party who is not in default must indicate his intention to accept such renunciation as a discharge by some outward act or by some statement which manifests such intention ; but if the intention is thus manifested, no particular form of making such election is necessary.1 Formal surrender of a written contract is unnecessary.2 The fact that the party who is not in default and who gives notice of his election to treat a renunciation or refusal to perform as breach, continues performance so as to avoid interrupting the work and in order to injure the adversary party as little as possible, does not show that he has withdrawn his election to treat the contract as discharged.3
1 Kilgore v. Society, 90 Tex. 139, 37 S. W. 598.
2 Alger-Fowler Co. v. Tracy, 98 Minn. 432, 107 N. W. 1124.
3 Louisville Packing Co. v. Crain, 141 Ky. 379, 132 S. W. 575. (In this case, however, no objection was made to such delay; and the party who was in default insisted upon having the breach treated as of the date of the acceptance of the renunciation, rather than as of the date of the renunciation, since the damages would be less if they were regarded as of the later date.)
4 Goodsell v. Telegraph Co., 130 N. Y. 430, 20 N. E. 969.
1 England. Frost v. Knight, L. R. 7 Exch. Ill; Hochster v. De La Tour, 2 El. & BI. 678; The Danube & Black Sea Railway & Kustendjie Harbour Co. v. Xenos, 11 C. B. (N.S.) 152.
United States. Roehm v. Horst, 178 U. S. 1, 44 L. ed. 953 [affirming, 91 Fed. 345, 33 C. C. A. 550]; Central Trust Co. v. Chicago Auditorium Association, 240 U. S. 581, L. R. A. 1917B, 580, 60 L. ed. 811; Foss-Schneider Brewing Co. V. Bullock, 50 Fed. 83, 8 C. C. A. 14; Edward Hines Lumber Co. v. Alley, 73 Fed. 603, 19 C. C. A.
599; Marks v. Van Eeghen, 85 Fed. 853, 30 C. C. A. 208; Colorado Yule Marble Co. v. Collins, 230 Fed. 78; In re Mullings Clothing Co., 238 Fed. 58, L. R. A. 1918A, 545; Dixon v. Anderson, 252 Fed. 694.
Arkansas. Wendt v. Tsmert-Hincke Milling Co., 107 Ark. 106, 154 S. W. 194.
California. Alderson v. Houston, 154 Cal. 1, 96 Pac. 884.
Connecticut. Bridgeport v. Aetna Indemnity Co., 91 Conn. 197, 99 Atl. 566.
Florida. Hall v. Northern & Southern Co., 55 Fla, 235, 46 So. 178.
Illinois. Roebling'8 Sons Co. v. Lockstitch Fence Co., 130 111. 660, 22 N. E. 518; Lake Shore & Michigan Southern Ry. Co. v. Richards, 152 111. 59, 30 L. R. A. 33, 38 N. E. 773.
Indiana. Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275.
Iowa. McCormick v. Basal, 46 la. 235; Sprague v. Iowa Mercantile Co., - la. - , 172 N. W. 637 [citing, Quar-ton v. Law Book Co., 143 la. 517, 32 L. R. A. (N.S.) 1, 121 N. W. 1009, and Pardoe v. Jones, 161 la. 426, 143 N. W. 405].