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 the party not in default elects to treat renunciation as a discharge, he is excused from further performance,1 and he may, in most jurisdictions, maintain an action at once, without waiting for the time fixed by the contract for performance,2 If the party in default has renounced the contract and the party who is not in default has elected to treat such renunciation as a discharge, the party who renounced such contract can not withdraw his renunciation and treat the contract as still in effect,3 especially if the party who is not in default has acted in reliance upon such renunciation in such a way that he will be prejudiced if the party who renounced such contract is allowed to retract such renunciation.4 If the renunciation of a contract consists of the declarations of one party, such renunciation may be withdrawn up to the time that the adversary party has elected to treat it as a discharge,5 at least if no injury to the adversary party will be caused by such retraction.6
I Feick v. Stephens, 250 Fed. 185 (obiter); Rocbling's Sons' Co. v. Lockstitch Fence Co., 130 111. 660, 22 N. E. 518.
See Sec. 3034.
2 Rocbling's Sons' Co. v. Lock Stitch Fence Co , 130 III. 660, 22 N. E. 518.
3 Feick v. Stephens, 250 Fed. 185 (apparently obiter, as the breach seems to have been failure to pay and not renunciation)
4 The possible justification for permitting the party who is not in default to aggravate damages by continuing performance after renunciation is considered in connection with the effect of breach in general. See Sec. 3033 et seq.
5 Marsh v. Blackman, 50 Barb. (N. Y.) 329.
6 See ch. LXXXVII. 7 See ch. LXXXIX.
8 See ch. LXXXIX. 1 See Sec. 3030.
2 See Sec. 2801 et seq.
3 South Boulder & Rock Creek Ditch Co. v. Marfell, 15 Colo. 302, 25 Pac 504; Morton v. Nelson, 145 111. 586, 32 N. E. 916; Waterman v. Bryson, 178 la. 35, 158 N. W. 466; Rayburn v. Comstock, 80 Mich. 448; Ault v. Dustin, 100 Tenn. 366, 45 S. W. 981.
Contra, Perkins v. Frazer, 107 La. 390. 31 So. 773.
If the party who is not in default accepts renunciation as a breach, his damages are fixed as of that time; and he can not recover subsequent damages although they are not increased by any further performance on the part of the party who is not in default, involving any economic waste; but they are merely increased by the occurrence of subsequent events which make performance more aluable to the party who is not in default than at the time of such renunciation.7 If a party who is to manage an opera-house for a certain share of the profits accepts renunciation as a breach, and fails to tender performance on his part, it is said that he can not recover a share of the profits of the sale of such lease which was made after such renunciation was refused by him.8