1 Farnsworth v. Garrard, 1 Camp. 38. And see Appleby v. Myers, Law R. 2 C. P. 651 (1867).
2 Duncan v. Blundell, 3 Stark. 6. See, also, Duffit D.James, 7 East, 480.
3 Ante, §1074; Ollivant v. Bayley, 5 Q. B. 289; Chanter v. Hopkins, 4 M. & W. 399.
4 Doe d. Palk v. Marchetti, 1 B. & Ad. 715; Russell v. Witt, 38 Ind. 9 (1871).
5 2 Saunders, 62, a, note 4; 1 Chitty, PI. 6th ed. 328; Harris v. Fer-rand, Hard. 36, 42; Gibbs v. Southam, 5 B. & Ad. 913; 8. c. 3 Nev. &Man. 155; Radford v. Smith, 3 M. & W. 258; Bach 9. Owen, 5 T. R. 409; Wildes v. Savage, 1 Story, 22.
6 Graddon v. Price, 2 C. & P. 610.
§ 1333. If one party to a contract which is to be performed at a future day gives the other party notice before that day arrives that he does not hold himself bound by it, the party so notified may treat such renunciation as a breach of the contract, and is not bound to perform it himself, and after the time elapses may sue the party thus breaking the contract;8 and many authorities hold he may bring such action even before the day of performance arrives, especially when in consequence of the refusal something has occurred to prevent the performance of the contract when the time shall arrive.4 But it is held that the rule that a refusal to perform a contract, the time for performance not having arrived, is a breach of the contract, does not apply to a promise to marry after a future event which has not occurred at the time of the refusal.5 Thus, if A. promises to marry B. when his (A.'s) father should die, B. cannot maintain an action against A. before his father's death for a refusal ever to marry her.6
1 Vyse v. Wakefield, 6 M. & W. 442, 453; 7 M. & W. 126; Radford v. Smith, 3 M. & W. 258; Bach v. Owen, 5 T. R. 409. 2 Vyse v. Wakefield, 6 M. & W. 442, 454, per Parke, B.
3 Danube & Black Sea Railway Co. v. Xenos, 11 C. B. (n. s.) 152 (1861); Cort v. Ambergate Railway Co., 17 Q. B. 127.
4 Hochster v. De la Tour, 2 El. & B. 678; Crist v. Armour, 34 Barb. 378. See Avery v. Bowden, 5 El. & B. 728; Phillpotts v. Evans, 5 M. & W. 475; Leigh v. Paterson, 2 J. B. Moore, 588; Ripley v. McClure, 4 Exch. 345.
5 Frost v. Knight, Law R. 5 Exch. 322 (1870).
6 Ibid. Burtis v. Thompson, 42 N. Y. 246, inclining to the contrary, does not seem to be generally approved.
In the former case, Kelly, C. B., said: " This is an action for a breach of promise of marriage, the promise being that the defendant would marry the plaintiff upon his father's death. The first question is whether this contract is really such that it is capable of being broken before the death of the father has taken place. Nothing can be more certain, as a to the performance of his contract, unless it be both possible and legal in its nature.1 This rule does not, however, extend exception in a charter-party,1 he will be excused for non-performance thereof.2
§ 1334. In the next place, as to What constitutes a good excuse for non-performance.1 A party is not ordinarily bound matter of fact, than that a promise to marry upon an event which has not yet happened, is not broken by the defendant declaring that he will not perform his promise. If it can be called a breach at all, it is a promissory or prospective breach only, a possible breach which may never occur, and not an actual breach.
"But it is contended that two decisions, to which I am about to advert, have established, as a principle of law, that if one who contracts to do an act upon a future day, or upon the happening of a future event, the contract being such as to impose an obligation or condition upon the other contracting party, declare to him that he will not perform his contract, this not only releases the other from the performance of the condition or obligation imposed upon him, but entitles him to treat the contract not merely as dissolved, but as broken, and to maintain an action for the breach. As applied to the contracts in the several cases in which this rule has been laid down, it is obviously reasonable and just as far as it gives the right to maintain an action for damages under the circumstances of each case. But to say that the contract is broken is simply to utter an untruth. One contracts, in 1870, to pay another £1,000 on the 1st of January, 1871. To say that the contract is broken before the year 1870 is at an end is undeniably and self-evidently untrue. It seems equally clear and incontrovertible in fact that a promise by a man to marry a woman after his father's death is not and cannot be broken while his father is yet alive. Yet these decisions have now made it law that a promise to do an act at a future day, or upon an event which has not yet occurred, is broken by a declaration to the promisee that it will be broken or will not be performed; and we are bound by these decisions, one of them having been pronounced in the Exchequer Chamber. It is necessary, therefore, to consider whether their authority extends not only to the contracts to which they related, and others of the like nature, but to a contract of a totally different character, and peculiar to itself, like a contract to marry.
"A promise of marriage has been well distinguished from other contracts in an admirable judgment, delivered by my very learned and eminent predecessor on this bench, Sir F. Pollock, in the case of Hall v. Wright, [El. B. & E. 746, 793], in the Exchequer Chamber; and we have only to consider these late decisions to see how well founded are the observations there made.
1 It is no defence to an action upon a contract for work and labor that the thing upon which the services were performed perished afterwards, before the article had been finished, if the plaintiff properly performed the work. Garretty v. Brazell, 34 Iowa, 100 (1871).
"Hochster v. De la Tour [2 El. & B. 678], is the leading case upon the subject. In this case the defendant promised to employ the plaintiff as courier on and from the 1st of June, for three months then next following; and having, before the month of June arrived, given notice to the plaintiff that he would not perform his contract, and that he was at liberty to enter into any other engagement, the plaintiff alleging that he was then exonerated from his contract, but had been ready and willing to perform it until exonerated, brought his action on the 21st of May, and, averring that the defendant had broken his contract, was held entitled, under these circumstances, to recover. In this case, as in the case now before the court, it is impossible not to see that the defendant, at the time of action brought, had not de facto broken his contract, inasmuch as the promise to do an act on the 1st of June is not and cannot be broken by any thing done or not doue on the 21st of May; but the decision of the court was otherwise, and it was held in effect that the defendant, having exonerated the plaintiff from the performance of his part of the contract, had put an end to it, or enabled the plaintiff to consider it at an end; and it was then determined that this declaration by the defendant that he would not perform the contract was itself a breach of the contract, and entitled the plaintiff to bring the action at once for such breach. The judgment of the court, as delivered by Lord Campbell, after first correctly stating the question, except that the statement assumes, or rather asserts, that the renunciation of the contract was a breach of it, proceeds to refer to the case of Short v. Stone [8 Q. B. 358], treating it as a case of a promise to marry on a future day; whereas it was, in fact, a promise to marry within a reasonable time after request; and then refers to the cases of Ford v. Tiley [6 B. & C. 325] and Bowdell v. Parsons [10 East, 359], as authorities in favor of the plaintiff. Short v. Stone merely decides that if a man who has promised to marry the plaintiff within a reasonable time after request marry another woman, an action is maintainable against him for a breach of the promise without any averment of a request, or that a reasonable time had elapsed after a request. It would to contracts to do difficult, dangerous, or improbable acts.1 For if, by his own contract, a man create a duty or charge be obviously absurd to require a request by the plaintiff to marry her, when, the defendant having married another "woman, a compliance with the request would be an act of bigamy. The declaration in that case, therefore, having, by the averment that the defendant had married another, shown, though informally, a dispensation with the request, the case itself was merely a decision that upon a promise to marry the plaintiff it is a breach to marry another woman. Then Ford v. Tiley, which was a contract to execute a lease for a certain term from a future day, and where defendant had executed a lease for the same term to another than the plaintiff, and Bowdell v. Parsons, where the defendant had contracted for the delivery of a quantity of specified goods to the plaintiff on a future day, and before that day had sold and delivered them to another person, only show that an act which renders the performance of a contract on a future day impossible may be the subject of an action before the day arrives. These cases are no authority at all for the proposition that a declaration by the defendant, that when the event shall have happened upon which he has promised to do an act, he will not perform his promise, amounts in itself to a present breach of the promise, upon which an action may be at once maintained. In the case of Emmens v. Elderton [4 H. L. Cas. 624], which is next referred to, the defendant had engaged the plaintiff to act as solicitor for a certain amount of salary, and for a year certain, and had dismissed him before the year had expired; and this dismissal was held by the House of Lords to be a breach of the contract to employ the plaintiff for a whole year, and so the action was held maintainable. After dealing with these cases, the judgment, as delivered by Lord Campbell, will be found, when carefully considered, to amount to no more than an argument upon the reasonableness of affording some remedy to the plaintiff, where, by the declaration of the defendant that he would not take him into his service when the 1st of June should arrive, he was obliged either to remain unemployed until the 1st of June, and lose the opportunity of obtaining another engagement, or to accept any other engagement that might be offered to him, and so disentitle himself to maintain an action, on the ground that he could not aver that he was ready and willing to perform his part of the agreement.