made. Therefore, if one of the parties to a contract after repudiating it, withdraws his renunciation within a few minutes and before the other party has done or said anything to show that he accepted, then the contract has not been broken.

$ 200. Effect of Countermanding-Damages. A party has a right to break an executory contract before performance by the other party. In some cases, it is not only to his advantage to do so but it also may be his duty in fairness to the other party. Thus, if a man has contracted for the erection of a house or the performance of other work for him without counting the cost, or if it afterwards appears that a change in his circumstances renders the object of the contract no longer desirable, he has the right to notify the other party not to perform. In such case, he is liable only for the actual damages suffered by the other party, and the latter is not entitled to proceed to execute the contract after such notice and sue for the contract price.1

In the course of performance. If one of the parties repudiates the contract in the course of performance, the other party has the right not only to recover damages for the breach, which include the profits he would have made, but also the value or price of what he did perform.2

61. In General Billposting Co. v. Atkinson [1909], App. Cas. 118, it is said that the broad ground, applicable to entire as well as divisible contracts, is that when one party repudiates a contract-evinces an intention no longer to be bound by it--the other party is justified in rescinding and in treating himself as absolved from further performance of it on his part.

6 Swigert v. Hayman, 56 W. Va. 123.

1 Clark v. Marsiglia, 1 Denio, 317; Johnson v. Meeker, 96 N. Y. 93; Heaver v. Lanahan, 74 Md. 493; Collins r. Delaporte, 115 Mass. 159; Gibbons v. Bente, 51 Minn. 500; Ward . Am. Health Food Co., 119 Wis. 25. But see contra, Roebling Co. v. Lock Stitch Co., 130 Ill. 660. 2 U. S. v. Behan, 110 U. S. 344; Black . Woodrow, 39 Md. 216; Eckenrode v. Chemical Co., 55 Md. 58; Cort r. Ambergate Ry. Co., 17 Q. B. 127. See also Cook r. Gray, 133 Mass. 106; Connolly . Sullivan, 173 Mass. 1.

§ 201. Time of Bringing Suit on Renunciation. In Hochster v. De la Tour, it was held for the first time that a renunciation of the contract by one party before performance was due not only discharged the other party from obligation to perform but entitled him to sue at once for the breach without waiting for the time of performance to arrive.

This rule has been adopted in most of the American cases which have considered the subject.2 But in a few other cases it is denied, and the old rule adhered to, namely, that, "in order to charge one in damages for the breach of an exectory personal contract, the other party must show a refusal or neglect to perform at a time when, and under conditions such that he is or might be entitled to require performance.”3

§ 202.

Repudiation by Conduct-Preventing Performance. When one party to a contract prevents the other from performing, or puts it out of his own power to perform his part, the other party may treat the contract as terminated and recover whatever damage he has sustained.1 If the contract

12 E. & B. 678, decided in 1852, followed in Frost v. Knight, L. R. 7, Exch. 114; Synge v. Synge [1894], 1 Q. B. 466; Mersey Steel Co. v. Naylor, L. R. 9 App. C. 435.

2Roehm v. Horst, 178 U. S. 1; Stokes v. McKay, 147 N. Y. 223; Kadish. Young, 108 Ill. 170; Remy v. Olds, 88 Cal. 537; Holloway v. Griffith, 32 Iowa, 409; Hosmer v. Wilson, 7 Mich. 294; Platt v. Blaul, 26 Mich. 173; Zuck ť. McClure, 98 Pa. 541; O'Neill v. Supreme Council, 70 N. J. L. 410; Wells v. Hartford Co., 76 Conn. 27. The rule of Hochster . De la Tour was discussed in Dugan . Anderson, 36 Md. 584; Dillon v. Ins. Co., 44 Md. 392; Textor v. Hutchings, 62 Md. 150. In Lewis . Tapman, 90 Md. 308, it was held that when there is a promise to marry at a future time, and the defendant before that time renounces the contract, an action may be brought at once without waiting for the expiration of the time agreed upon. But the Court expressly said that it did not adopt Hochster v. De La Tour further than as applicable to an action for breach of promise to marry.

3Daniels v. Newton, 114 Mass. 530. See also, Stanford v. McGill, 6 N. Dak. 536; King v. Waterman, 55 Neb. 324; Perkins v. Frazer. 107 La. 390.

1Chicago v. Tilley, 103 U. S. 146; Lovell . Ins. Co., 111 U. S. 274; Hinckley v. Pittsburg Steel Co., 121 U. S. 264; Nichols v. Scranton Steel Co., 137 N. Y. 485; Hocking v. Hamilton, 158 Pa. 107; Synge

can not be performed by one party unless the other does a concurrent act, the failure of the latter to perform that act, is a breach although the obligation to do so may be only implied.2

When a contract imposes upon one party the duty to pay the price of property by a certain day, if the other party purposely keeps out of the way, so that tender can not be made, that is a breach of his implied obligation to receive payment and affords a right of action.3

"A party who disables himself from performing his contract before default by the other party, waives the performance of acts by the latter which, except for such disability, he would be bound to perform as a condition precedent for recovery on the contract."4

The expres

$203. Breach by Failure of Consideration. sion, "failure of consideration," sometimes used to designate a breach of contract, is a vague term which has no definite technical import. It sometimes means such a material mistake as to the subject matter of the contract as renders it void according to the principles set forth in a previous chapter

r. Synge [1894], 1 Q. B. 466. In Western Union Tel. Co. v. Semmes, 73 Md. 9, the plaintiff contracted with the defendant company to conduct for it certain litigation for a compensation contingent upon success, and pending the suit, the defendant, without plaintiff's consent, compromised and settled the controversy. It was held, first, that the plaintiff was entitled to reasonable compensation for the work actually done, but not to the sum agreed upon as the contingent fee, and, secondly, that it was neither necessary nor competent for the plaintiff to prove that the litigation would have been successfully concluded.

2Foternick r. Watson, 184 Mass. 187: Howard . Am. Mfg. Co., 162 N. Y. 347; Cook v. Columbian Oil Co., 144 Cal. 670; Mackay v. Dick, L. R. 6, App. Cas. 263, per Lord Blackburn, approved in Sprague v. Booth [1909], App. Cas. 580.

3 Loehr v. Dickson, 141 Wis. 332. See also, Connely v. Haggerty. 65 N. J. Eq. 596, and ante, p. 318.

4Woolner v. Hill, 93 N. Y. 581. See also, Planche v. Colburn, 3 Bingham, 14; Fitzgerald v. Allen, 128 Mass. 232. When one party is to perform before the other, the latter may bring an action for the first party's failure to perform, although he has not himself performed. Meriden B. Co. v. Zingsen, 48 N. Y. 247.

of this work dealing with mistake in the formation of a contract. Thus where a man buys, or agrees to buy, an article to which the seller has no title, it is said that there is a failure of consideration.1

The term is also loosely used to describe a failure of performance, as where an inferior article is delivered and used in place of the one contracted for, in which case the buyer is said to be entitled to a reduction from the price for the partial failure of consideration.2

The term "failure of consideration" is often employed to indicate an unreal or illusory consideration. So in a contract to buy a forged instrument, or a worthless article, there is said to be a failure of consideration.

It has been held that if one buys the bonds of a municipality which are void because issued without authority the amount paid may be recovered upon this ground. But a different and questionable ruling has been made as to the effect of a contract to buy bonds afterwards adjudicated to be void. It would seem that the construction of the contract in such case should depend upon whether the agreement was for the sale of a chance or not, i. e., whether the parties dealt on the assumption of the validity of the bonds, or the buyer can be held to have run the risk. If I agree to buy your next year's crop of oranges and pay you in advance, then, if the crop wholly fails, I may recover the amount paid if the contract was conditioned upon its coming into existence; but if what I bought was your chance or expectation of a crop, then,

Disharoon v. Waters, 114 Md. 456; Flandron v. Hammond, 148 N. Y. 129. See, ante, p. 171.

2 Rasin v. Conley, 58 Md. 59; Walker r. Pue, 57 Md. 155. 3Wood v. Sheldon, 42 N. J. L. 421; Thompson v. McCullugh, 31 Mo. 224.

4Ripley v. Case, 78 Mich. 126. So a promise to pay for a void patent is without consideration. Nash v. Lull, 102 Mass. 60.

5Paul v. Kenosha, 22 Wis. 266.

6Otis v. Cullum, 92 U. S. 447.

7See, Penniman . Winner, 54 Md. 135; Herzog . Heyman, 151 N. Y. 587.

although the crop fails, I got what I bargained for and can not recover what I paid.R

In the cases above mentioned of the sale of forged instruments on the sale of that which the seller does not own, the true principle is, not that the consideration has failed, but that there is an implied warranty of genuineness or of title."

8See ante, p. 342.

Strauss v. Hensey,7 D. C. App. 289; 36 L. R. A. 92; S. C. 9 D. C. App. 544.