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.
Even if the breach is of such a type that it may operate as a discharge of the contract.1 it does not have this effect automatically, at least as long as damages are not increased by failure to treat the contract as discharged.2 Breach by one party gives the adversary party an elec tion in so far as his exercise of the right of election does not increase the damages resulting from the breach.3 On the one hand, in case of breach which may operate as a discharge of the contract,4 the party who is not in default may treat the contract as discharged.5 On the other hand, if the party not in default will not increase damages by so doing, he may treat the breach as not affecting the continued existence of the contract, and the contract as still being in force.6
Oregon. Pengra v Wheeler, 24 Or. 532, 21 L. R. A. 72C. 34 Pac 334
Pennsylvania. Moore v Colt, 127 Pa. St. 289, 14 Am. St Rep 845. 18 Atl. 8
Texas. Commerce Milling & Grain Co v Morris, 27 Tex. Civ App 533, 65 S W. 1118
25 Myers v. Gross 59 111. 430; Graf v. Cunningham, 109 N Y 369, 16 N. E 551; Wright v. Reusens. 133 X Y. 298, 31 N. E 215; Hatton v Johnson, 83 Pa St. 219.
26 See Sec. 2951 et seq. and 2971 et seq.
27 See Sec. 2981 et seq
1 See Sec. 2881 et seq.
2 England. General Billposting Co. v Atkinson [19091. A. C. 118.
United States. World's Fair Mining Co. v. Powers, 224 U S. 173. 56 L ed. 717; In re Hellams, 223 Fed. 460; Feick v. Stephens, 250 Fed. 185.
Arkansas. Fletcher v. Verser, 79 Ark. 271, 116 Am. St. Rep. 75, 96 S. W. 384.
Georgia. Chamberlin v. Booth, 135 Ga. 719, 35 L. R. A. (N.S.) 1223, 70 S. E. 569.
Louisiana. T)es Allemands Lumber Co. v. Morgan City Timber Co., 117 La 1, 41 So. 332; Murray v. Barnhart,
117 La 1023, 42 So. 4S9; Jenningg-Heywood CM Syndicate v Housere-Latreille Oil Co, 119 La. 793. 44 So 481
Massachusetts. Clark v. Gulesian, 197 Mass 492, 84 N. E. 94.
Michigan. Gates v Detroit & Mackinac Ry. Co, 147 Mich 523, 111 N. W. 101
Nebraska. Fahey v Updike Elevator Co, - Neb -, 171 N. W. 50
Nevada. Bradley v Nevada-California-Oregon Ry., - Nev. -, 178 Pac. 906.
New York. Shaw v. Republic Life Ins. Co, 69 N. Y. 286; Elterman v. Ilyman, 192 N. Y 113, 84 N. E 937; Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313, 123 N. E. 766.
Washington. Kennedy v. Meilicks Calculator Co., 90 Wash. 238, 155 Pac. 1043.
West Virginia. Dorr v. Midelburg, C5 W. Va. 778, 23 L. R. A. (N.S.) 987, 65 S. E. 97.
3 England. General Billposting Co. v. Atkinson . A. C. 118.
United States. World's Fair Mining Co. v. Powers, 224 U. S. 173, 56 L. ed. 717; In re Hellams, 223 Fed. 460; Feick v. Stephens, 250 Fed. 185.
Arkansas. Fletcher v. Verser, 79 Ark. 271, 116 Aid St. Rep. 75, 06 S. W. 384.
Louisiana. Des Allemands Lumber Co. v Morgan City Timber Co., 117 La 1, 41 So. 332; Murray v Barn-hart, 117 La. 1023, 42 So 489; Jen-nings-Heywood Oil Syndicate v Hous-siere-Latretlle Oil Co., 119 La 793, 44 So. 481.
Massachusetts. Clark v. Gulesian, 197 Mass. 492. 84 N E 94.
Michigan. Gates v Detroit & Mackinac Ry. Co., 147 Mich. 523, 111 N. W 101.
Nebraska. Fahey v. Updike Elevator Co, - Neb -, 171 N W 50.
Nevada. Bradley v Nevada-California-Oregon Ry., - Nev. -, 178 Pac 906.
New York. Shaw v. Republic Life Ins. Co., 69 N. Y. 286; Elterman v. Hyman, 192 N Y 113, 84 N E 937; Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y 313. 123 N E. 766
Washington. Kennedy v. Meilicke Calculator Co., 90 Wash 238, 155 Pac. 1043
"The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time When the contract is to be executed and then hold the other party responsible for all the consequences of non-performance; but in that case he keeps the contract alive for the benefit of the other party as well as his own; be remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it. On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non performance of the contract at the appointed time, subject, however, to abatement in respect of any circumstance which may have afforded him the means of mitigating his loss" Frost v. Knight, L R 7 Ex 111, 112 [quoted in Roehm v. Horst, 178 U. S. 1, 11, 44 L. ed. 958].
"It is well settled that, where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: be may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or be may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance sue and recover under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. In the latter case the contract would be continued in force for that purpose. Where, however, the injured party elects to keep the contract in force for the purpose of recovering future profits, treating the contract as repudiated by the other party, in order to such recovery the plaintiff must allege and prove performance upon his part, or a legal excuse for non-performance." Lake Shore & M. S. Ry. Co. v. Richards, 152 111. 59, 30 L. R. A. 33, 38 N. E. 773 [quoted in Longfellow v. Huffman, 49 Or. 486, 90 Pac. 907].
4 See Sec. 2882 et seq.
Election to take either of these alternative rights operates as a waiver of the other. In general usage, however, waiver is used to denote the election to treat the contract as in effect and to waive the right to treat it as discharged; and almost never of the election to treat the contract as discharged and to waive the right to treat it as still in effect.7