Repudiation or a refusal to perform a contract releases the other parties from their obligations and enables them to sue for damages, even before the performance was due from the party who has repudiated the contract. These points were all carefully discussed in the case of Frost vs. Knight:10

9 Cummings vs. Arnold, 3 Metc, 486.

10 Law Rep. 7, Exq. I11.

"The action was for breach of promise of marriage. The promise, as proved, was to marry the plaintiff on the death of the defendant's father. The father, still living, the defendant announced his intention of not fulfilling his promise on his father's death, and broke off the engagement, whereupon the plaintiff, without waiting for the father's death, at once brought the present action. The plaintiff having obtained a verdict a rule nisi was applied for to arrest the judgment, on the ground that a breach of the contract could only arise on the father's death, till which event no claim for performance could be made, and, consequently, till its occurrence, no action for breach of the contract be maintained. A rule nisi having been granted, a majority of the Court of Exchequer concurred in making it absolute, Martin, B., dissenting; and the question for us is, whether the judgment of the majority was right.

"The cases of Lovelock vs. Franklyn, 8 Q. B., 371, and Short vs. Stone, 8 Q. B., 358, which latter case was an action for breach of promise of marriage, had established that where a party is bound to the performance of a contract at a future time, puts it out of his own power to fulfill it, an action will at once he. The case of Hochster vs. De La Tour, 2 E. & B., 678; 22 L. J. (Q. B.), 455, upheld in this court in The Danube and Black Sea Co. vs. Xenos, 13 C. B. (n. s.), 825; 31 L. J. (C. P.), 284, went further, and established that notice of an intended breach of a contract to be performed in futuro had a like effect.

"The law with reference to a contract to be performed at a future time, where the party bound to performance announces prior to the time his intention not to perform it, as established by the cases of Hochster vs. De La Tour, and the Danube & Black Sea Co. vs. Xenos, on the one hand, and Avery vs. Bowden,

5 E. & B., 714; 26 L. J. (Q. B.), 3; Reid vs. Hoskins,

6 E. & B., 953; 26 L. J. (Q. B.), 5, and Barwick vs. Ruba, 2 C. B. (n. s.), 563; 23 L. J. (C. P.), 280, on the other, may be thus stated: the promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; but in that case he keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstances which would justify him in declining to complete it.

"On the other, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.

"Considering this to be now settled law, notwithstanding anything that may have been held or said in the cases of Phillpotts vs. Evans, 5 M. & W., 475, and Ripley vs. McClure, 4 Ex., at p. 359, we should have no difficulty in applying the principle of the decision in Hochster vs. De La Tour, 2 E. & B., 678, 22 L. J. (Q. B.), 455, to the present case, were it not for the difference which undoubtedly exists between that case and the present, viz.: that, whereas there the performance of the contract was to take place at a fixed time, here no time is fixed, but the performance is made to depend on a contingency, namely, the death of the defendant's father during the lifetime of the contracting parties. It is true that in every case of a personal obligation to be fulfilled at a future time, there is involved the possible contingency of the death of the party binding himself, before the time of performance arrives, but here we have a further contingency depending on the life of a third person, during which neither party can claim performance of the promise. This being so, we thought it right to take time, to consider whether an action would lie before the death of the defendant's father had placed the plaintiff in a position to claim the fulfillment of the defendant's promise.

1 'After full consideration we are of opinion that, notwithstanding the distinguishing circumstance to which I have referred, this case falls within the principle of Hochster vs. De La Tour, 2 E. & B., 678, 22 L. J. (Q. B.) 455, and that, consequently, the present action is well brought.

"The considerations on which the decision in Hochster vs. De La Tour is founded are that the announcement of the contracting party of his intention not to fulfill the contract amounts to a breach, and that it is for the common benefit of both parties that the contract shall be taken to be broken as to all its incidents, including non-performance at the appointed time; as by an action being brought at once, and the damages consequent on non-performance being assessed at the earliest moment, many of the injurious effects of such non-performance may possibly be averted or mitigated.

"It is true, as is pointed out by the Lord Chief Baron in his judgment in this case, that there can be no actual breach of a contract by reason of non-performance so long as the time for performance has not yet arrived. But, on the other hand, there is - and the decision in Hochster vs. De La Tour, proceeds on that assumption - a breach of the contract when the promisor repudiates it and declares he will no longer be bound by it. The promisee has an inchoate right to the performance of the bargain which becomes complete when the time for performance has arrived. In the meantime, he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his interests. His rights acquired under it may be dealt with by him in various ways for his benefit and advantage. Of all such advantage the repudiation of the contract by the other party, and the announcement that it never will be fulfilled must, of course, deprive him. It is therefore quite right to hold that such an announcement amounts to a violation or the contract in omnibus, and that upon it the promisee, if so minded, may at once treat it, as a breach of the entire contract, and bring his action accordingly.

"The contract having been thus broken by the promisor, and treated as broken by the promisee, performance at the appointed time becomes excluded, and the breach by reason of the future non-performance becomes virtually involved in the action as one of the consequences of the repudiation of the contract; and the eventual non-performance may therefore, by anticipation, be treated as a cause of action, and damages be assessed and recovered in respect of it, though the time for the performance may yet be remote.

"It is obvious that such a course must lead to the convenience of both parties; and though we should be unwilling to found our opinion on grounds of convenience alone, yet the latter tend strongly to support the view that such an action ought to be admitted and upheld. By acting on such a notice of the intention of the promisor, and taking timely measures, the promisee may in many cases avert, or at all events, materially lessen, the injurious effects which would otherwise flow from the non-fulfillment of the contract; and in assessing the damages for breach of performance, a jury will, of course, take into account whatever the plaintiff has done, or has had the means of doing, and, as a prudent man, ought in reason to have done, whereby his loss has been, or would have been, diminished.

"It appears to us that the foregoing corsidera-tions apply to the case of a contract the performance of which is made to depend on a contingency, as much as to one in which the performance is to take place at a future time; and we are therefore of opinion that the principle of the decision of Hochster vs. De la Tour, 2 E. & B., 678, 22 L. J. (Q. B.), 455, is equally applicable to such a case as the present." Section 76. Discharge by Accord and Satisfaction.

A discharge of a contract through accord and satisfaction takes place where something new is taken in discharge of the obligation due under the contract.11

11 Simmons vs. Clark, 56 111., 96-101; Frost Vs. Johnson, 8 Ohio, 393-4.

A payment of a sum of money cannot be taken in accord and satisfaction of a debt for a larger sum.