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 purchaser of land under an executory contract refuses to accept the debt or to pay for the land, such refusal excuses the vendor from tendering performance.1 Under a contract to repurchase certain notes on thirty days' notice, refusal to take such notes when notice is given excuses tender at the end of thirty days.2 A notice by a railroad company which has agreed to furnish cars that it will not furnish such cars, excuses further demand therefor.3 Refusal by one who has agreed to furnish logs to be sawed at a specified price excuses further performance or tender. The fact that the adversary party thereafter sells his mill does not prevent him from recovering damages.4 If a party to a contract refuses to pay the other when payment is due, and refuses to take any steps to determine the amount which is actually due, the adversary party may treat such refusal as a discharge.5
9 General Billpostlng Co. v. Atkinson , A. C. 118 [affirming (1908), 1 Ch. 5371; Measures Bros. v. Measures , 2 Ch. 248 [affirming (1910), 1 Ch. 336].
10 Gibson v. Wheldon, 82 Vt. 175, 72 Atl. 909.
11 Gibson v. Wheldon, 82 Vt. 175, 72 Atl. 909.
12 Borrowman v. Free, L. R. 4 Q. B. D. 500; Elgar v. Newhall, - Mass - , 126 N. E. 661.
13 Elgar v. Newhall, - Mass. - , 126 N. E. 661.
1 See Sec. 2008.
2 Bradley v. Nevada-California-Oregon Ry., 42 Nev. 411, 178 Pac. 906; Cochran v. Yoho, 34 Wash. 238, 75 Pac, 815.
3 Bradley v. Nevada-California-Oregon Ry., 42 Nev. 411, 178 Pac. 006.
4 Bradley v. Nevada-California-Oregon Ry., 42 Nev. 411, 178 Pac. 006.
5 See Sec. 2872 and 3023 et seq. I McWilliams v. Brookens, 30 Wis.
2 Loeb v. Stern, 198 111. 371, 64 N. E. 1043.
If the party for whom a building or construction contract is to be performed, orders the contractor to cease performance, such conduct operates as a discharge of the contract.6 If a property owner refuses to make payments to the contractor in instalments as required by the terms of the contract, the contractor may treat such refusal as a discharge and maintain an action at once to recover damages.7 If the owner renounces a building contract during performance, the contractor may recover at the contract rate for what has been performed, including a percentage of the contract price which by the contract was to be retained if the contract was performed.8 If A has entered into a contract with B, by which B is to construct a tunnel for A, and A is to furnish tim ber, A's refusal to furnish timber discharges B from further performance.9 If the contractor refuses to construct a building in accordance with the terms of the contract, the property owner may treat such refusal as a discharge;10 and the effect of such refusal as a discharge is not obviated by the subsequent offer of the contractor to perform in a manner different from that required by the contract.11 A repudiation of a building contract excuses the contractor from the obligation of procuring or attempting to procure the certificate of the engineer as a condition precedent to payment,12 or from reference to arbitration.13 Abandonment of a building contract by the contractor excuses the owner from complying with a clause which requires, as a condition precedent to his taking possession of the building, a written certificate of the architect that the contractor is not doing the work satisfactorily, and three days' notice to the contractor.14 If a contractor who has partly performed a contract to remodel an old building refuses to complete it, a right of action in favor of the owner exists at once.15
3 Bigelow v. Chicago, Burlington & Northern Ry., 104 Wis. 109, 80 N. W. 95.
4 Dunn v, Johnson, 33 Ind. 54, 5 Am. Rep. 177.
5 Bishop v. T. Ryan Construction Co., 106 Wash. 254, 180 Pac. 126.
6 Bradley v. Nevada-California-Oregon Ry., 42 Nev. 411, 178 Pac. 906.
7 Knotts v. Clark Construction Co., 249 Fed. 181.
8 Howard County v. Pesha, - Neb, - , 172 N. W. 55.
9 McConnell v. Corona City Water Co., 149 Cal. CO, 8 L. R. A. (N.S.) 1171, 85 Pac. 929.
10 Douglas v. Lowell, 194 Mass. 268, 80 N. E 510.
11 Douglas v. Lowell, 194 Mass. 268, 80 N. E. 510.
12 Smith v. Wetmore, 167 N. Y. 234, 60 N. E. 419.
13 Munk v. Kanzler, 26 Ind. App. 105, 58 N. E. 543.
Refusal by one who has hired a special train to take it unless the carrier will guarantee arrival at a specified time, discharges the carrier for all liability if it repays the money paid under the contract,16
One who has agreed to support another, and during performance refuses to furnish support any longer,17 or refuses to furnish support at a reasonable place selected by the obligee, if the latter has the right to select such place,18 breaks such contract and is liable for damages. A breach exists if he repudiates the obligation of such contract, even if he offers to support the grantor as a matter of charity.19
One who has employed another for a specified time breaks such contract if he discharges such employe without cause during such time, and the employe may sue at once for damages for the entire contract.20 If A accepts employment under a contract to work for one year as employe, and then to be received into partnership for one year, and he is discharged without cause during the first year, A may at once sue for breach of the entire contract.21 It is not necessary for the employe to tender services further or to remain in readiness to perform.22 Furthermore, in most jurisdictions the employe can not recover the full contract price, even if he tenders performance or remains in readiness to perform.23 If the employer demands performance, which is substantially more hazardous than that contemplated by the terms of the contract, in such a way as to show that he will not accept any other performance, he renounces the contract.24 If A and B have entered into a contract by which B is to be permitted to remove certain articles from A's realty, A's refusal to permit B to perform is such a breach that B may sue at once without showing that A has converted such articles to his own use.25
14 George A. Fuller Co. v. Doyle, 87 Fed. 087.
15 Chapman v. Belts, 48 W. Va 1, 35 S. E. 1013.
16 Wilcox v. Ry., 52 Fed. 204, 17 L. R. A. 804, 3 C. C. A. 73.
17 Parker v. Russell, 133 Mass. 74; Schell v. Plumb, 55 N. Y. 502.
18 Tuttle v. Burgett, 53 O. S. 408, 53 Am. St. Rep. 640, 30 L. R. A. 214, 42 N. E. 427.
19 Walker v. Walker, 104 Ia. 505, 73 N. W. 1073.
20 Pierce v. Tennessee Coal, Iron & Railroad Co., 173 U. S. 1, 43 L. ed. 501;
Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; East Tennessee, Virginia & Georgia Ry. v. Staub, 75 Tenn. (7 Lea) 397; Stubbe v. Waldeck, 78 Wis. 437, 47 N. W. 833. For other cases on this point, see Sec. 2562 and ch. LXXXVII.
21 Dugan v. Anderson, 30 Md. 567, 11 Am. Rep. 500.
22 Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285.
23 Southworth v. Rosendahl, 133 Minn. 447, 3 A. L. R. 468, 158 N. W. 717.
See Sec. 2562.
If a debtor has agreed as a compromise to pay a certain amount "on demand," his act in insisting that his creditor shall collect such amount from certain pending litigation is such a renunciation that the creditor may bring an action at once to recover the amount of the original claim.26
If A and B have entered into a contract to marry "in the fall," and A notifies B in October that he will not perform, B may bring an action at once.27