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 realty under an executory contract renounces the contract, the vendor can not recover the purchase price in an action at law, but he is restricted to his right of action for damages.1
If an executory contract for the sale of goods is broken by renunciation, the vendor can not treat such breach as performance, or continue performance, and maintain an action for the contract price,2 even if the article has been altered especially to suit the wishes of the purchaser.3 The seller can not increase damages by shipping the goods to the buyer after the buyer has given notice that he will not accept them.4
7 Savage Manufacturing Co. v. Armstrong, 19 Me. 147.
8 Savage Manufacturing Co. v. Armstrong, 19 Me. 147.
1 Laird v. Pyne, 8 Dowl. V. C. 860; Old Colony Railway Corporation v. Evans, 72 Mass. (6 Gray) 25, GO Am. Dec. 394; Hogan v. Kyle, 7 Wash. 595, 38 Am. St. Rep. 910, 35 Pac. 3'.)!).
2 England. Valpy v. Oakeley, 10 Q. B. 941, 21 Eng. Rul. Cas. 39; Atkinson v. Bell, 8 Barn. & C. 277.
District of Columbia. King v. Rhodes, 47 D'. C. App. 316.
Georgia. Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 94 Am. St. Rep. 112, 59 L. R. A. 122, 42 S. E. 378.
Iowa. Pate v. Ralston, 158 la. 411, 61 L. R. A. (N.S.) 735, 139 N. W. 906.
Maine. Greenleaf v. Gallagher, 93 Me. 549, 74 Am. St. Rep. 371, 45 Atl. 829.
Massachusetts. Clement & Hawkes Mfg. Co. v. Meserole, 107 Mass. 362; Collins v. Delaporte, 115 Mass. 159; Whitney v. Thacher, 117 Mass. 523; Whitney v. Boardman, 118 Mass. 242; Barry v. Cavanagh, 127 Mass. 394; Schramm v. Boston Sugar Refining Co., 146 Mass. 211, 15 N. E. 571; Tufts'v. Bennett, 163 Mass. 398, 40 N. E. 172; White v. Solomon, 164 Mass. 516, 30
L. R. A. 537, 42 N. E. 104; Barrie v. Quinby, 206 Mass. 259, 92 N. E. 451.
Minnesota. Sherman Nursery Co. v. Aughenbaugh, 93 Minn. 201, 100 N. W. 1101.
Nebraska. Backes v. Schlick, 82 Neb. 289, 117 N. W. 707.
New Hampshire. Gordon v. Norris, 49 N. H. 376.
New Jersey. Bixler v. Finkle, 85 N. J. L. 77, 88 Atl. 846.
New York. Phelps-Stokes Estate v. Nixon, 222 N. Y. 93, 118 N. E. 241.
North Dakota. Hart-Parr Co. v. Finley, 31 N. D. 130, L. R. A. 1915E, 851, 153 N. W. 137.
Vermont. Danforth v. Walker, 37 Vt. 239.
Virginia. American Hide & Leather Co. v. Chalkley, 101 Va. 458, 44 S. E. 705.
West Virginia. Acme Food Co. v. Older, 64 W. Va. 255, 17 L. R. A. (N.S.) 807, 61 S. E. 235.
Wisconsin. Lincoln v. Charles Alshuler Manufacturing Co., 142 Wis. 475, 28 L. R. A. (N.S.) 780, 125 N. W. 908; J. B. Bradford Piano Co. v. Hacker, 162 Wis. 335, 156 N. W. 140.
An employe who is wrongfully discharged can not, by the weight of authority, treat the contract as still in force and continue to tender his services, and recover the instalments of his wages as if the contract were still in force.5 In some jurisdictions an attorney who has been discharged can not recover the full contract price agreed upon for his services.6 If A enters into a construction contract for B, and B subsequently orders A not to continue performance of such contract, A can not recover the full contract price.7 Accordingly, if the owner has repudiated a building contract,9 as a contract for constructing a monument,8 the contractor can not continue performance and recover the contract price. If the owner knows that the contractor will not complete the building according to contract, he must either take the building and use reasonable efforts to complete it or abandon it to the contractor; but he can not let it remain unfinished and increase damages either for deterioration or-loss of rental value.10 After an employer has broken a contract to employ another at work on certain realty, such other can not treat the contract as still in force and continue to enter such realty. He may be treated as a trespasser.11 If A has agreed to furnish advertising for B, and A continues to publish such advertisements after B has notified him to discontinue such advertising, A can not recover the contract price from B.12 If A has agreed to give lessons to B by correspondence for a stipulated consideration, and B refuses to continue such course or to pay, A can not recover the full contract price.13
3 J. B. Bradford Piano Co. v. Hacker, 162 Wis. 235, 156 N. W. 140.
4 Hart-Parr Co. v. Finley, 31 N. D. 130, L. R A. 1915E, 851, 153 N. W. 137.
5 Maryland. Black v. Woodrow, 39 Md. 194.
Massachusetts. Hyland v. Giddings, 77 Mass. (11 Gray) 232.
Michigan. Wigent v. Mam, 130 Mich. 609, 90 N. W. 423.
Minnesota. Southworth v. Rosen-dahl, 133 Minn. 447, 3 A. L. R. 468, 158 N. W. 717.
North Dakota. Davis v. Bronson, 2 N. D. 300, 33 Am. St. Rep. 783.
Virginia. Clark v. Franklin, 34 Va. (7 Leigh) 1.
See Sec. 2555 et seq. 6 Southworth v. Rosendahl, 133 Minn. 447, 3 A L. R. 468, 158 X. W. 717.
See ch. LXXXV1I.
7 Dunn v. Barton, 40 Minn. 415, 42 N. \V. 289.
8 Gibbons v. Bente, 51 Minn. 499, 22 L. R. A. 80, 53 N. W. 756; Duvis v. Bronson, 2 N. D. 300, 33 Am. St. Rep. 783, 16 L. R. A. 655, 50 N. W. 836.
9 Wigent v. Marrs, 130 Mich. 609, 90 N. W. 423.
10 Eaton v. Gladwell, 121 Mich. 444, 80 N. W. 292.
11Wando Phosphate Co. v. Gibbon, 28 S. Car. 418, 13 Am. St. Rep. 690, 5 S. E. 837.
The same principles apply in cases of breach by defective performance. Thus one who accepts and uses defective machinery after knowing of the defects can not thereby increase damages.14 If a leaky boiler is furnished under a contract guaranteeing it to be first-class, the vendee can not continue to use it after knowing of the defect and increase damages.15 Under a building contract by which the builder agrees to keep the building or other thing which he has constructed in repair for a certain period, it is the duty of the property owner to give to the contractor an opportunity to make good defects in performance; and he can not destroy the thing which has been built and avoid all liability on the contract without such notice.16
In cases of this sort it is said that the party who is not in default must either perform as much of the contract as the party who is in default consents to his performing, or else he must treat the contract as discharged and recover a reasonable compensation for what he has done thereunder.17 The adversary party can not continue performance after breach, perform in part, and recover for such partial performance on quantum meruit.18