12Long v Conklin. 75 111 32; New Oileans v Wardens. 11 La Ann 244

See obiter in Rowland Lumber Co. v. Ross, 100 Va. 275, 40 S. E. 022.

13 See Sec. 500.

14 See Sec. 589

I5 See ch XCV.

It is true that damages was the only remedy which the common law could give in the exercise of its ordinary jurisdiction; but no reason appears for making an arbitrary selection of the remedy which the court was able to give at one stage of legal development and for saying that the obligation of the contract is limited to this particular remedy. It seems, therefore, to be held, wherever the question is really involved, that the party in default has no legal right to break a valid and subsisting contract; but that, on the contrary, his act in so doing is a wrongful act. What is ordinarily meant by the statement that the party who is in default may terminate the contract and substitute his liability to pay damages for his original obligation, is that the party who is not in default must take proper precautions to mitigate damages wherever this can be done reasonably,18 and that accordingly he must recognize the fact of breach in such cases and desist from further performance on his part if his act in continuing to perform after he knows of such, breach will increase damages.19

16 See ch. XCV.

17 See ch. XCV.

18 England. Jamal v. Moolla Dawood Sons & Co. [1916]. A. C. 175.

United States. Wicker v. Hoppock, 73 U. S. (6 Wall ) 94, 18 L ed 752; Warren v. Stoddart, 105 U. S. 224, 26 L ed. 1117.

Florida. Moses v. Autuono, 56 Fla. 400, 20 L R A (MS) 350, 47 So. 925.

Kansas. Hamilton v McKenna, 95 Kan. 207, L. R A. 1915E, 455, 147 Pac. 1126.

Kentucky. Cincinnati, New Orleans & Texas Pacific Ry. v Rose (Ky ), 21 L R A ( N S ) 681, 115 S. W. 830

Maine. Miller v. Mariner's Church,

7 Me. 51.

Massachusetts. Ingraham v. Pullman Co., 190 Mass 33, 2 L R. A. (N. S) 1087, 76 N E 237; Maynard v. Royal Worcester Corset Co., 200 Mass 1, 85 N. E. 877; Hall v Paine, 224 Mass 62, L. R. A. 1917C, 737, 112 N. E. 153.

New York. Taylor v. Read, 4 Paige (N Y ) 561.

West Virginia. Huntington Easy Payment Co v. Parsons, 62 W Va. 26, 9 L. R A. (NS.) 1130, 57 S. E 253.

19 United States. Yates v. United States, 15 Ct CI. 119 (obiter).

Michigan. International Test-book Co v. Jones, 166 Mich 86, 131 N. W. 98; Ayer v. Devlin, 179 Mich. 81, 146 N W. 257.

While the party who is in default may demand that the adversary party refrain from farther performance so as not to increase damages,20 such act does not discharge the party who is in default from liability upon his contract.21

If damages are to be measured at the time fixed by the contract for performance, the party who is in default can not alter the time at which damages are to be estimated by repudiating the contract in advance.22 It is said, however, that if the party who is not in default elects to treat a repudiation by the adversary party as a discharge of a contract of sale, and if he proceeds to settle at once, in good faith, with a third person from whom such property had been bought by the other two, his settlement, if in good faith, is binding upon the party in default; and the party who is not in default is not bound to wait until the time fixed for performance.23

That there is no legal right to break a contract on payment of damages, and that immunity from further liability on payment of damages is merely the consequence of a system of remedies which gives a money judgment for damages as the only remedy for breach of contract, is shown by the fact that if a provision for a penalty is inserted in a contract, a party to such contract can not evade liability thereon by paying such penalty if the actual damages exceed the amount of the penalty.24

'Missouri. Peck v. Kansas City Metal Roofing & Corrugating Co., 96 Mo. App. 212, 70 S. W. 169.

Nebraska. Hixson Map Co. v. Nebraska Post Co., 5 Neb. (unoff.) 388, 98 N. W. 872.

New York. Clark v. Marsiglia, 1 Denio (N Y.) 317, 43 Am. Dec. 670; Butler v. Butler, 77 N. Y. 472, 33 Am. Rep 648

North Dakota. Stanford v. McGill, 6 N. D 536, 38 L. R. A. 760, 72 N. W. 938; Hart-Parr Co. v. Finley, 31 N D. 130, L. R. A. 1915E, 851, 153 N. W.


Vermont. Danforth v. Walker, 37 Vt 239 [s. c, 40 Vt. 2571.

Wisconsin. Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 41 Am St. Rep. 33, 58 N. W. 232; Richards v. Manitowoc & Northern Traction Co, 140 Wis. 85, 121 N. W 937.

20 See Sec. 3032.

21 Rowan v. Hull, 55 XV. Va. 335, 47 S. E. 92.

22 Long v. Conklin, 75 111. 32; Kadish v. Young, 108 111. 170, 48 Am Rep 548.

23 Davidor v. Bradford, 129 Wis. 524. 109 N. W. 576.

24 England. Cotterel v. Hooke, 1 Dougl. 97.

United States. Watts v. Camors, 115 U. S. 353, 20 L. ed. 406; Robinson v. Cathcart, Fed. Cas. No. 11,946, 2 Cranch, C. C. 590.

Minnesota. Wilieston v. Mathews, 55 Minn 422, 56 N. W. 1112.

New Hampshire. Morrill v Weeks. 70 N. H. 178, 46 Atl. 32.

New Jersey. Gloucester City v. Eachbach, 54 N. J. L. 150, 23 Atl. 360.

North Carolina. Rhyne v. Rhyne, 160 N Car. 559, 76 S. E. 469.

It is said that a party who is himself in default can not take advantage of subsequent breach by the adversary party.25 This broad and general statement must be understood to be limited by the principles applicable to subsequent covenants and to independent covenants.26 as well as by the principles applicable to breach of vital terms and to breach of minor terms.27