One action only is allowed for a single breach of contract.... 1291 Sometimes one action only allowed for several breaches of contract. 1292 First half of Cockburn's rule approved in England but inconsistent with Distinction between action for restitution and action on the contract. 1316 No inconsistency in allowing full damages before all performance due....... 1317 What constitutes an election to treat repudiation as a breach.. 1323 Positiveness of repudiation.. What amounts to total repudiation.. Whether anticipatory inability to perform amounts to a breach. 1324 1325 1326 1327 There can be no anticipatory breach of unilateral obligations. 1328 Independent obligations. 1329 Repudiated contract of insurance.. 1330 Repudiation may be a defence though it does not amount to a breach. 1331 Time when repudiation becomes effectual.... 1332 Effect of failing to elect to treat repudiation as a breach under the English rule... 1333 American decisions opposed to English rule.. 1334 Withdrawal of repudiation. . . . 1335 Possible distinction between the effect of repudiation before breach and after partial breach of a contract. ... 1336 Summary of American doctrine in regard to anticipatory breach. 1337 § 1288. A breach of contract involves a broken promise. As a contract consists of a binding promise or set of promises, a breach of contract is a failure, without legal excuse, perform any promise which forms the whole or part of a contract. It is immaterial for this purpose whether the failure in performance is great or small, or whether any damage has been caused.1 Any breach of contract gives rise to a right of action; and at common law no judicial expression of the rights of the parties could be obtained until there had been a breach.2 When the time for performance of a promise has so far passed that substantial fulfilment of the promise is no longer possible, the obligation of the promisor changes its character. Even though the law could and did grant specific performance, so called, of all contracts, the performance enforced by the court would differ from that contracted for at least in being given at a later time than was agreed. The Civil law makes a distinction in terms between mora or delay in performance, and a breach in other respects than in time, of the duty to perform. The difference is not so sharply defined in English and American law, but is, nevertheless, implicitly observed in some distinctions which the law makes. The obligation to perform and the obligation to do so at a fixed time are regarded as two duties, 1 See infra, 1340, ad fin. 2 See 42 N. J. L. JI. 102, as to statutory powers given English courts, to make anticipatory declaration of the rights of parties. rather than as one indivisible duty. Thus a promise to convey property which is enforced by equity is regarded as specifically enforced even though considerable time has elapsed after the date at which it was agreed that the conveyance should be made. Damages may be given for the delay as a separate matter. At law a promise to pay money is almost the only kind of promise which can be specifically enforced, and the common law in enforcing an obligation to pay an agreed sum of money 3 ceived that the promise itself continued in effect after the time fixed for its performance had elapsed. On the other hand, when a promise to deliver goods or do anything other than pay money is broken, the law substitutes for the obligation a right of action for damages.1 con It should be observed, however, that this distinction between an obligation to pay money and an obligation to do other things is only applicable where the money is absolutely due. When money is promised in exchange for something else which has not been given, and where, therefore, no debt has arisen, a breach of the promise to pay the money for the performance to be exchanged for it is ground for the payment of damages, not for the recovery of the full sum promised. In such a case the same considerations are applicable as in the case of obligations to deliver goods or render services. § 1289. Promises payable on demand. Generally there can be no breach of a promise until all the conditions qualifying it have happened or been performed.5 But a peculiar rule prevails in regard to promises to pay on demand. "When a party agrees to pay his own debt on request, A few other promises may in effect be specifically enforced at law, e. g., a promise of perpetual forbearance, a promise to keep an offer open. 'An illustration of this distinction is found in the rule of the common law that an accord and satisfaction could not discharge liability on a sealed instrument for the payment of money even after breach, but an accord and satisfaction after breach of a covenant of any other character could be made, for the covenant had merged in a right of action for damages. See infra, § 1849. 5 Blackburn v. Irvine, 225 Fed. 217, 123 C. C. A. 405; Allen v. Stephens, 102 Ga. 596, 29 S. E. 443; Atcherley v. Lewers, 18 Hawaii, 625; In re Squire, 168 Ia. 597, 150 N. W. 706; McDermott v. Alger, 186 Mich. 278, 152 N. W. 991; Essex v. Smith, 97 Neb. 649, 150 N. W. 1022; Gilbert v. Taylor, 148 N. Y. 298, 42 N. E. 713. it is regarded as an undertaking to pay generally, and no special request need be alleged. But it is otherwise when he undertakes for a collateral matter, or as a surety for a third person. There if the agreement be that he will pay on request, the request is parcel of the contract, and must be specially alleged and proved." " The explanation of the anomaly that a debtor whose promise is expressly conditional upon a demand should be liable without a demand (for the suggestion that bringing an action itself is a demand which satisfies a condition precedent to the plaintiff's right to bring the action, is absurd) is found in the common form of early declarations, which always alleged, even though the defendant's promise was in terms unconditional, that the defendant promised to pay on request, and that though often requested he failed to do so. It was therefore impossible to tell from the pleadings whether or not there was in fact a condition requiring a request or demand; and the decision See supra, § 1175. 7 Bronson, J., speaking for the court in Nelson v. Bostwick, 5 Hill, 37, 40 Am. Dec. 310, an action against Shumway as principal and Nelson as surety upon a bond, "conditioned to be void if Shumway should pay on demand all costs that might be awarded to the defendants" in a certain action. Judge Bronson citedDevenly v. Welbore, Cro. Eliz. 85; Hill v. Wade, Cro. Jac. 523; Waters v. Bridge, Cro. Jac. 639; Birks v. Trippet, 1 Saund. 32, and note (2); Harwood v. Turberville, 6 Mod. 200; Com. Dig. Pleader (c. 69); Sicklemore v. Thistleton, 6 M. & S. 9; Carter v. Ring, 3 Camp. 459; Douglass v. Reynolds, 7 Pet. 113, 8 L. Ed 626, 2 Saund. 108, note (3); Lawes' Pl. 232, 251; 1 Chit. Pl. 363, ed. of '37. Cowen, J., in a concurring opinion, (cited as additional authorities for the necessity of an actual demand in the one case and the needlessness of it in the other; Selman v. King (Cro. Jac. 183); The Case of an Hostler (Yelv. 66); and continued "A promise to save harmless on request is an instance. (Harrison v. Mitford, 2 Bulstr. 229.) This and various other cases to the same effect are cited, 1 Saund. 33, note (2), 'for,' adds the editor, 'a request is parcel of the contract, and must be proved; and no action arises until a request be made.' (Vid. Douglass v. Howland, 24 Wend. 51, and several books there cited to the same point.) In Harwood v. Tuberville (6 Mod. 200) the defendant became surety by bond to pay a previous debt of his mother, on demand; and a special request was held necessary to charge him." These authorities were quoted and relied upon in First Nat. Bank v. Story, 200 N. Y. 346, 93 N. E. 940, 34 L. R. A. (N. S.) 154, where it was held that one who guaranteed payment at maturity "upon demand" was not liable until demand had been made. To the same effect is Bradford Old Bank v. Sutcliffe, [1918] 2 K. B. 833. See also supra, § 1175; infra, § 2040. |