If a contract is broken by renunciation before performance is due, the adversary party may recover damages occasioned by such breach, but he can not, without performance, recover upon the contract as if he had performed the same.1 Under a contract giving to A the option to sell a certain business for twenty-five thousand dollars or more, his commission to be whatever he sells it for in excess of twenty-five thousand dollars, A can not recover from the vendor as if he had performed where the vendor refuses to allow him to perform.2 If A repudiates a contract whereby he has agreed to pay for scales which B is to build on A's premises, B can not thereafter forward such scales and recover the contract price.3 If, on the other hand, the broker has secured a customer for his principal before the principal has repudiated the contract, the principal is bound to pay the compensation agreed upon.4 If the party in default elects to treat the contract as a valid and subsisting obligation, the damages which he may recover for the breach are to be measured as of the time fixed by the contract for performance, if the party who has repudiated the contract persists in his refusal to perform.5 Under a contract to deliver certain articles as the adversary party may need them, the time for estimating the damage of the party who is not in default can not be changed in accordance with his wish by the renunciation of such contract by the adversary party;6 but the party not in default may buy such property as he needs it, and the damages will be fixed by the difference between the contract price and the market price at such times as the party not in default may actually need such articles.7 This view does not affect A's right of action, but merely the measure of his damages.

1 McPherson v. Hattich, 10 Ariz. 104, 85 Pac. 731; Bannister v. Victoria Coal & Coke Co., 63 W. Va. 502, 61 S. E. 338.

2 See Sec. 2882 et acq.

3 See Sec. 2081 et seq.

4 Schillinger v. Bosch-Ryan Grain Co., 145 la. 750, 122 N. W. 961 [affirming, 116 N. W. 132]; Krebs Hop Co. v. Livesley, 51 Or. 527, 02 Pac 1084.

See Sec. 2086.

5 McPhenon v. Hattich, 10 Ariz. 104, 85 Pac. 731; Bannister v. Victoria

Coal & Coke Co., 63 W. Va. 502, 61 S. E. 338.

See Sec. 2981 et seq.

1 Thompson v. Kyle, 39 Fla. 582, 68 Am. St Rep. 193, 23 So. 12.

See Sec. 2884 and ch. LXXXVII

2 Thompson v. Kyle, 39 Fla. 582, 68 Am. St. Rep. 193, 23 So. 12.

3 Moline Scale Co. v. Beed, 52 la. 807, 35 Am. Rep. 272, 3 N. W. 96. (B has not performed the contract as he has not built the scales.)

On the other hand, if the party who is not in default elects to treat such renunciation as a breach, it has been held that he may treat the amount of his damages as fixed by the condition of affairs at the date of such renunciation.8 If a contract of sale is renounced by the seller before the time of performance, the buyer may purchase such articles at once, and the measure of damages will be the difference between the contract price and the market price at the date of such renunciation.9 If one of two joint buyers renounces his contract with the other, such other may settle at once with the vendor.10