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.
Missouri. Wayland v. Western Life Indemnity Co., 166 Mo. App. 221, 148 S. W. 626.
New York. Shaw v. Republic Life Ins. Co., 69 N. Y. 286.
Virginia. Clemmitt v. New York Life Ins. Co., 76 Va. 355.
4 Wright v. Manhattan Life Ins. Co., 126 Fed. 82.
5 Palmer v. Mutual Life Ins. Co., 121 Minn. 395, 141 N. W. 518.
6 In re Hellams, 223 Fed. 460. 7See ch. LXXXIX.
8 See ch. XC.
9 United States. Yates v. United States, 15 Ct. Cl. 119.
Maryland. Black v. Woodrow, 39 Md. 194.
Massachusetts. Hyland v. Gidcrings, 77 Mass. (11 Gray) 232 (obiter).
Michigan. Wigent v. Marrs, 130 Mich. 609, 90 N W. 423.
Minnesota. Gibbons v. Bente, 51 Minn. 499, 22 L. R. A. 80, 53 N. W. 756; Southworth v. Rosendahl, 133 Minn. 447, 3 A. L. R. 468, 158 N. W. 717, (obiter).
Nebraska. Hixson Map Co. v. Nebraska Post Co., 5 Neb. (unoff.) 388, 98 N. W. 872.
New York. Lord v. Thomas, 64 N. Y. 107.
North Carolina. Heiser v. Mears, 120 N. Car. 443, 27 S. E. 117.
North Dakota. Davis v. Bronson, 2 N. D 300, 33 Am. St. Rep. 783, 16 L. R. A. 655, 50 N. W. 836
Pennsylvania. Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 536, 17 Am. St Rep 788, 18 Atl 1058.
Rhode Island. Collyer v. Moult on, 0 R. I. 90, 98 Am. Dec 370.
South Carolina, Wanda Phosphate Co v Gibbon, 28 S. Car. 418, 13 Am. St Rep 690, 5 S E 837 (obiter).
Tennessee. Chicago Building & Mfg. Co. v. Barry (Tenn. Ch. App.), 52 S. W. 451; Gardner v. Deeds. 116 Tenn. 128, 4 L R. A. (N.S.) 740. 92 S. W. 518.
Vermont. Danforth v. Walker, 37 Vt 239
Virginia. Clark v. Franklin. 34 Va. (7 Leigh) 1; Rowland Lumber Co v. Ross 100 Va. 275. 40 S. E 922
West Virginia. Rowan v Hull, 55 W. Va 335 47 S E 92; Acme Food Co v Older. 64 W Va 255. 61 S E. 235; Comstock v J. R. Droney Lumber Co , 69 W Va 100. 71 S E 255.
Wisconsin. Malueg v Hatten Lumber Co. 140 Wis 381. 122 N W. 1057; Lincoln v. Charles Alshuler Manufacturing Co., 142 Wis 475. 28 L. R A. (N S ) 780. 125 N W 908
"Again, it is an elementary principle that, in case of a bargain and eale of goods, not specific, and before they are set aside for the vendee, he notifies the executory vendor that he elects to and does cancel the contract and will not receive the goods, he can not be made liable for the purchase price, as on a sale of goods, but only for damages for his breach of contract. That being upon the theory, often declared, that, ordinarily, any person has a right to breach his mere executory agreement and submit to damages therefor. Ward v. Am. H. F. Co., 119 Wis. 12, 96 N. W. 388; Malueg v. Hatten L. Co., 140 Wis. 381, 122 N. W. 1057. Unexcelled F. W. Co. v Polites, 130 Pa. St. 536, 18 Atl. 1058, is a good illustrative case." Lincoln v. Charles Alshuler Manufacturing Co, 142 Wis 475, 28 L. R A. (M.S.) 780, 125 N. W 908.
He is said to have "an unqualified right to abandon the contract at any stage of performance." Barrie v. Quin-by, 206 Mass 250 92 N. E 451.
l0Ault v. Dustin, 100 Tenn 366, 45 S. W 981; Brady v Oliver. 125 Tenn. 595, 41 L. R A. (N.S.) 60, 147 S. W. 1135; Acme Food Co v Older. 64 W. Va 255. 17 L R A (N.S) 807, 61 S. E. 235; Malueg v. Hatten Lumber Co., 140 Wis 381, 122 N. W. 1057
"A person, at law, may of right breach his contract with another and subject himself to the burden of such damages for the benefit of such other as may be necessary to remedy the breach" Malueg v Hatten Lumber Co, 140 Wis 381 122 N W 1057 [eiting. Ward v American Health Food Co. 119 Wis 12 96 N. W. 3S81
11 See Sec. 25 et seq . ante
See also discussion in III Black. Com, 153 et seq.
While in many of the cases in which the question comes up the distinction between an exercise of a legal right and a wrongful exercise of the power to break an executory contract which every party thereto has, just as every one has the power to commit a tort or a crime, is ordinarily a mere matter of names without any clear distinction of legal rights, there are certain classes of cases in which the practical result which will be reached if the breach of a contract is regarded as the exercise of a legal right is different from the result that will be reached if the breach of a contract is regarded as the wrongful exercise of the power which the party possesses. If a party has a legal right to break a contract, subject to making a compensation in damages, the performance of such contract by a party who has threatened to break it is sufficient consideration for an additional promise by the adversary party to pay additional compensation for such performance; while, if the breaking of a contract is a wrongful act, no consideration for such subsequent promise will exist. While in some jurisdictions it is held that the performance of a contract is a consideration for a subsequent promise to pay additional compensation therefor,13 the great weight of modern authority is to the effect that such performance does not amount to consideration, since the party who has performed had no legal right to do otherwise, although he had the power so to do.14 The question whether the party in default who commits such a breach as operates as a discharge is exercising his legal right to pay damages in lieu of performance, or whether he is acting wrongfully, is also raised in cases in which the legislature has given the remedy of specific performance or injunction in cases in which equity had not granted such remedies before the enactment of such statute; and such statute is enacted after a contract of that sort has been made and before an action has been brought to enforce such contract, or possibly before a final judgment has been rendered in such an action. Under the constitutional provisions which prevent a state from impairing the obligation of a contract,15 such a statute is unconstitutional if the party who is in default had the legal right to elect between performing or paying damages; while if his breach is a wrongful act, the legislature may grant a new remedy or change a pre-existing remedy as long as the substantive rights of the parties are not impaired.16 In cases of this sort it is ordinarily held that the statute which provides that a specific performance or injunction may be granted does not impair the obligation of a prior contract.17 This result can be reached only upon the theory that the party in default has no legal right to elect to pay damages in lieu of performing the contract.