"Phillpotts v. Evans [5 M. & W. 475] is to the same effect. There, upon a contract to accept wheat, the defendant gave notice, before the time for the delivery, that he would not accept it. Afterward, when the wheat arrived, and the delivery was offered to the defendant, he again refused to accept it. The court held that the damages had been correctly assessed is possible at the time when the contract is made, but afterwards becomes an impossibility, he is liable for damages reat the difference between the contract price and the price when the wheat was to be delivered. And Parke, B., in that case expressly observes, 'If Mr. Richards (of counsel for the defendants) could have established that the plaintiffs, after the notice given to them, could have maintained the action without waiting for the time when the wheat was to be delivered, then, perhaps, the proper measure of damages would be according to the price at the time of the notice, but I think no action would then have lain for the breach of the contract, but that the plaintiffs were bound to wait for the arrival of the time for the delivery of the wheat to see whether the defendant would then receive it. The defendant might then have chosen to take it, and would have been guilty of no breach of contract; for all that he stipulates for is that he will be ready and willing to receive the goods, and to pay for them at the time when by the contract he ought to do so. His contract was not broken by his previous declaration that he would not accept them. It was a mere nullity, and it was perfectly in his power to accept them, nevertheless; and, vice versa, the plaintiffs could not sue him before.'
1 Paradine v. Jane, Aleyn, 26; Touteng v. Hubbard, 3 B. & P. 300; Bullock v. Dommitt, 6 T. R. 650; Hadley v. Clarke, 8 T. R. 259; Story on Bailments, § 36, 37; Medeiros v. Hill, 8 Bing. 231; Martin v. Schoen-berger, 8 Watts & Serg. 367; Brown v. Kimball, 12 Vt. 617; and see, also, Spence v. Chodwick, 10 Q. B. 517; Jones v. St. John's College, L. R. 6 Q. B. 115 (1870).
"The same rule was adopted in the case of Startup v. Cortazzi [2 C, M. &'R. 165]. The notice amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the mean time and rescinds the contract. These latter words show, indeed, that the plaintiff may agree to rescind the contract; but it does not follow, and it would not, I think, be a consequence resulting from the rescission of the contract, that the plaintiffs could create a right of action against the defendant, upon such rescission, without his consent. The parties to a contract may rescind it if they will, and with or without conditions, but neither can, by a rescission of the contract, impose a condition upon the other to which he is not a consenting party. In Ripley v. McClure [4 Exch. 345], the contract was to deliver tea upon the arrival of a ship at Belfast, and the question, upon a long correspondence between the parties, was whether the defendant had refused to accept the tea so as to entitle the plaintiffs to maintain the action. There was evidence of what was termed a refusal before the arrival of the ship, but which was in effect no more than a declaration that he would not accept the tea when it should arrive; but there was evidence, also, of a continuance of this refusal until after the arrival of the ship. There was likewise a question whether the defendant had waived the delivery or an offer to deliver the tea when the ship had arrived. Upon the whole case the plaintiff was held entitled to recover, upon the ground that the defendant had refused to accept before the arrival of the ship, and that the refusal continued till after its arrival, and that he had waived the actual delivery or an offer to deliver; and in delivering the judgment of the court upon the case, Parke, B., observes, 'It was contended for the defendant that to suiting from non-performance thereof.1 A court of equity would, however, relieve against such a contract, where it could do so without injury to the other party.2 And in some cases the very nature of the contract implies, in the absence of language clearly to the contrary, that performance is dependent upon physical ability, as in the case of a contract for the services of a musician or actress,3 or upon the existence of the place agreed on for performance.4 So, if an obligation be imposed on a party by law, and do not arise from his contract, if it be rendered impossible afterwards by the act of God or by the act of the government, as in declaring a blockade which is a "restraint of princes," within the meaning of an constitute a breach of the contract a refusal at any time was insufficient; that it must be a refusal after the arrival of the cargo; and that the supposed refusal in July, long before the contract to buy became absolute, was no breach, and nothing more than an expression of an intention to break the contract, not final, and capable of being retracted; and we think that if the jury had been told that a refusal before the arrival of the cargo was a breach, it would have been inaccurate. We think that point rightly decided in Phillpotts v. Evans-.'
"These cases, but especially the two last, seem to me to establish the proposition that the determination to break a contract to be performed at a future day, and not notified by the one to the other of two contracting parties, does not in itself amount to a breach of the contract. It may, indeed, amount to waiver of conditions precedent; it may entitle the other contracting party to treat the contract as rescinded and at an end; but I think the result of these decisions is (and that such is the law) that it does not entitle the contracting party to treat a contract, not merely as at an end, but as broken by him who does no more than declare his intention or his determination to break it." See also Churchward v. The Queen, Law R. 1 Q. B. 173, 208 (1865); Greenway v. Gaither, Taney, 227, 230.