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.
An attempt to get a favorable modification of a contract is not a renunciation thereof.2 A claim by one of the parties to a contract that the terms of the contract had been modified by a subsequent new contract, does not amount to a renunciation of the original contract.3
If, however, one party manifests his intention in unequivocal language not to perform the contract unless the adversary party consents to a modification thereof, this may amount to a breach,4 but it can not relieve him from liability under his contract. If one of the parties to the contract notifies the adversary party that he will not perform unless such adversary assents to the modification of the contract by the addition of certain new terms, such conduct amounts to a renunciation of the contract.5 Such conduct is a breach, but does not operate as a new contract. If a party to a building contract demands that the adversary party assent to the modification of the plans before he proceeds with performance, such conduct is renunciation which the adversary party may treat as breach.6 If A has agreed to construct an ice plant and refuses to complete it unless the adversary party will waive a claim for damages, such refusal is a breach.7 A refusal to perform a contract of sale unless the adversary party consents to a modification of the price, amounts to a-renunciation of the contract 8 If a contract for the sale of goods provides for its sale on credit, the refusal of the seller to deliver the goods unless the buyer will deliver notes for the purchase price thereof before such goods are delivered, amounts to a renunciation of the contract,9 especially if the seller demands that such notes be delivered at a place other than that fixed by the contract for the delivery of the goods.10
10 LaSalle Extension University v. Ogburn, 174 N. Car. 427, 93 S E. 986 (obiter).
11 Edward E. Gillen Co. v. John H. Parker Co., - Wis. - , 171 N. W. 61.
12 Edward E. Gillen Co. v. John H. Parker Co., - Wis. - , 171 N. W. 61.
1 See Sec. 2458.
See also, Tusant v. Grand Lodge Ancient Order of United Workmen, 183 la. 480, L. R. A. 1918F, 452, 163 N. W. 600; Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co., 80 O. S. 365, L. R. A. 1915B, 536, 106 N. E. 33.
2 Bernstein v. Meech, 130 N. Y. 354, 20 N. E. 255.
3 Bannister v. Victoria Coal & Coke Co., 63 W. Va. 502, 61 S. E. 338.
4 Connecticut. Trowbridge v. Jefferson Auto Co., 92 Conn. 569, 103 Atl. 843.
Georgia. Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 04 Am. St. Rep. 112, 50 L. R. A. 122, 42 S. E. 378.
Iowa. Davis v. Campbell, 93 la. 524, 61 N. W. 1053.
Kansas. Guild v. Atchison, Topeka & Santa Fe Ry., 57 Kan. 70, 57 Am. St. Rep. 312, 33 L. R. A. 77, 45 Pac. 82.
Massachusetts. Martin v. Meles, 179 Mass. 114, 60 N. E. 397.
New York. National Contracting Co. v. Hudson River Water Power Co., 192 N. Y. 200, 84 N. E. 965.
Ohio. Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co., 80 O. S. 365, L. R. A. 1915B, 536, 106 N. E. 33.
5 Connecticut. Trowbridge v. Jefferson Auto Co., 92 Conn. 569, 103 Atl 843.
Delaware. Johnson Forge Co. v. Leonard, 3 Penn. (Del.) 312, 94 Am. St. Rep. 86, 51 Atl. 306.
Massachusetts. Stephenson v. Cady, 117 Masts. 6.
New Jersey. Blackburn v. Re illy, 47 N. J. L 200, 54 Am. Rep. 159, 1 Atl. 27
New York. National Contracting Co. v. Hudson River Water Power Co, 192 N. Y. 209, 84 N. E. 965.
Ohio. Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co, 89 O. S. 365, L. R. A. 1915B, 536, 106 N. E. 33.
6 National Contracting Co. v. Hudson River Water Power Co, 192 N. Y. 209, 84 N. E. 965.
"It is also urged that even if the defendant erred in the claim made by it during its controversy with the plaintiff, that did not necessarily justify the plaintiff' in abandoning the work. Doubtless there was a locus paenitentiae some reasonable time during which the defendant might have become aware that it was in error and receded from its position It is not every unfounded or illegal claim a party may make during the prosecution of a large contract that justifies the other in abandoning the contract for a breach. But on this question the learned referee has found that the plans furnished by the defendant for an earth dam with masonry core 'were never withdrawn, nor was the plaintiff ever advised that they would be withdrawn, or that the original plans would be restored.' It is true that the learned referee in his second conclusion of law finds that the acts of the defendant referred to in his findings of fact did not constitute a breach of the contract on its part;and it is also true that on appeal we may treat a conclusion of law as a finding of fact, if in reality it is such. But no one knew better than the learned referee who tried this cause the distinction between findings of fact and conclusions of law, and it is apparent that his disposition of the case was governed by what he deemed the rules of law laid down in the decisions of the appellate tribunals on the earlier appeals. We should not be astute to construe as a finding of fact that which the referee never intended to be such. There is no finding that the defendant was willing to carry out the contract on its part, and under our construction of the rights of the parties the facts found by the referee negative any such willingness." National Contracting Co v. Hudson River Water Power Co, 192 N. Y. 209, 84 N. E. 905.
7 Bryson v. McCone, 121 Cal. 153, 53 Pac. 637.