then be an immediate breach of contract, and if of sufficiently serious character damages for the loss of the entire contract might be recovered. As countermanding work may have the legal effect of prevention in this country, 16 though it does not involve actual physical prevention, it would be a breach of contract on this theory at the time when a stoppage in the performance of the contract had been caused thereby.17 It may be argued that the principle of implied subsidiary promises explains satisfactorily the doctrine of anticipatory breach, and the argument has been stated by courts of the highest authority.18 In spite of the somewhat strained character of such an implication, the explanation would be acceptable, if it did not require such an implication to be made in all contracts-unilateral and absolute as well as bilateral and conditional. 19

§ 1319. Time of performance fixed by act of the promisee.

The time for the defendant's performance is frequently fixed in a contract, not by naming a definite day, but by some act to be done by the plaintiff either a counter-performance or a request. If the defendant repudiates the contract, it excuses the plaintiff from doing a nugatory act, and, as in the case of any other condition which the defendant's conduct excuses, he cannot take advantage of its non-performance. 20 He is deprived

207 N. Y. 377, 101 N. E. 162, 49 L. R. A. (N. S.) 922; Millan v. Bartlett, 69 W. Va. 155, 71 S. E. 13.

In United States v. Behan, 110 U. S. 338, 346, 28 L. Ed. 168, 4 Sup. Ct. 81, the court said: "The wilful and wrongful putting an end to a contract, and preventing the other party from carrying it out, is itself a breach of the contract for which an action will lie for the recovery of all damage which the injured party has sustained." It should be noted that this statement was made before the Supreme Court had accepted the doctrine of anticipatory breach. See also Indian Contract Act, § 53, and supra, § 677. But see Murdock v. Caldwell, 10 Allen, 299.

18 See supra, § 1298. See also Cort

19 Ibid. This is recognized and the conclusion cheerfully accepted by L. Hand, J., in Equitable Trust Co. v. Western Pac. R., 244 Fed. 485, 501 (aff'd. 250 Fed. 327, 162 C. C. A. 397, 246 U. S. 672, 62 L. Ed. 932, 38 S. Ct. Rep. 423); but it may be doubted whether most courts would go so far. See infra, § 1328.

20 The leading case for this wellsettled doctrine is Cort v. Ambergate, etc., Ry. Co., 17 Q. B. 127. A few of

of nothing thereby, except what he has indicated a willingness to go without, for he has said that even if the request be made he will not heed it, or if the counter-performance be offered he will not accept it. The case is very different where the defendant promises to pay on a fixed day, or when an outside event happens. To hold him immediately liable on such a contract is to enlarge the scope of his promise, and entirely without his assent. If he prevented the time for his performance from coming, his assent might be dispensed with, but not otherwise.21 The English cases before Hochster v. De La Tour, 22 which are cited in support of the doctrine of anticipatory breach, 23 may be satisfactorily explained on these principles with possibly one exception.24

the many other cases which might be cited are: Hinckley v. Pittsburg Steel Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; Dwyer v. Tulane, etc., Adm's, 47 La. Ann. 1232, 17 So. 796; Brackett v. Knowlton, 109 Me. 43, 82 Atl. 436; Murray v. Mayo, 157 Mass. 248, 31 N. E. 1063; Canda v. Wick, 100 N. Y. 127, 2 N. E. 381.

The distinction here contended for is well brought out in Lowe v. Harwood, 139 Mass. 133, 29 N. E. 538. In that case there was a contract for an exchange of real estate. No time was fixed for performance. Before any tender or demand for performance the defendant repudiated the contract. Holmes, J., in delivering the opinion of the court, held that this "not only excused the plaintiff from making any tender and authorized him to rescind if he chose, but amounted to a breach of the contract. contract was for immediate exchange, allowing a reasonable time for necessary preparations. In the absence of special circumstances, which do not appear, sufficient time had been allowed, even if any consideration of that sort could not be and was not waived by the defendant. The case is not affected by Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384, but

The

falls within principles that have been often recognized."

21 In Ford v. Tiley, 6 B. & C. 325, the time for performance was to be fixed by the defendant's coming into possession of certain property-an event depending on outside contingencies, which the defendant prevented from happening as expected. In the nature of the case, however, a party cannot prevent a day fixed by reference to the calendar from arriving. 22 2 E. & B. 678.

23 Bowdell v. Parsons, 10 East, 359; Ford v. Tiley, 6 B. & C. 325; Caines v. Smith, 15 M. & W. 189. In Bowdell v. Parsons and Caines v. Smith the defendant promised to perform upon request, and later by making his own performance impossible excused the request. As to Ford v. Tiley, see n. 21. So in Clements v. Moore, 11 Ala. 35-a decision before the days when anticipatory breaches were talked of-the defendant was held liable without a request, on his marriage with another than the plaintiff, for breach of a promise to marry on request.

24 Short v. Stone, 8 Q. B. 358. The promise was to perform within a reasonable time after request. The defendant, by making his own performance

§ 1320. Contracts to marry.

A great many of the cases cited in support of the doctrine of anticipatory breach are upon contracts to marry; 25 and these cases may well be distinguished. Lord Cockburn said in Frost v. Knight: "On such a contract being entered into . . . a new status, that of betrothment, at once arises between the parties."26 When a man promises to pay money or deliver goods at a future day, all he understands, all a reasonable man could understand, is that he will be ready to perform on the day. When a man promises to marry, his obligation, as he understands it and as it is understood, is wider, and includes some undertaking as to conduct before the marriage-day. If this be so, marriage with another than the betrothed is an immediate breach, not directly of the promise to marry, but of the subsidiary obligation implied from it. As this breach necessarily involves a loss of the marriage, full damages could be recovered. Lord Cockburn tries to apply the same line of reasoning to other contracts, saying," 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

impossible, clearly dispensed with the necessity of a request as such. It does not seem so clear why he should forego the "reasonable time." Coleridge, J., avoided the difficulty by a strained construction of the declaration, holding the promise to mean after request made within a reasonable time. The other members of the court simply say the request is dispensed with.

25 Frost v. Knight, L. R. 7 Ex. 111; Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275; Adams v. Byerly, 123 Ind. 368; Holloway v. Griffith, 32 Ia. 409, 7 Am. Rep. 208; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; Sheahan v. Barry, 27 Mich. 217; Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 81 Am.

St. Rep. 302; Burtis v. Thompson, 42 N. Y. 246, 1 Am. Rep. 516; Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L. R. A. 660, 78 Am. St. Rep. 914; Burke v. Shaver, 92 Va. 345, 23 S. E. 749. The distinction here suggested was referred to in Stanford v. McGill, 6 N. Dak. 536, 72 N. W. 938, 38 L. R. A. 760, and in Lewis v. Tapman, 90 Md. 294, 308, 45 Atl. 459, 47 L. R. A. 385; the court said: "There is no occasion to adopt and we do not adopt Hochster v. De La Tour further than it applies under Frost v. Knight to an action for breach of promise to marry." See also Swiger v. Hayman, 56 W. Va. 123, 48 S. E. 839, 107 Am. St. Rep. 899.

26 L. R. 7 Ex. 111, 115.

be essential to his interests." 27 But this is fanciful. If true the action should be brought for breach of a promise to have the contract kept open. If there is such an implied obligation in any case there should be in case of negotiable paper, for in no other case is it more important that the promise should not be discredited before the time for performance. Yet it may be doubted if any court would apply the doctrine to bills and notes. 28

$ 1321. Practical convenience.

The reason most strongly urged in support of the doctrine of anticipatory breach is, however, its practical convenience. It is said that if it is certain that the plaintiff is going to have an action, it is better for both parties to have it disposed of at once. It may be conceded that practical convenience is of more importance than logical exactness, but yet the considerations of practical convenience must be very weighty to justify infringing the underlying principles of the law of contracts. The law is not important solely or even chiefly for the just disposal of the litigated cases immediately before the court. The settlement of the rights of a community without recourse to the courts can only be satisfactorily arranged when logic is respected. But it is not logic alone which is injured. The defendant is injured. He is held liable on a promise he never made. He has only promised to do something at a future day. He is held to have broken his contract by doing something before that day. En

"L. R. 7 Ex. 112, 114.

2 Benecke v. Hæbler, 38 N. Y. App. Div. 344, 58 N. Y. S. 16, affirmed without opinion in 166 N. Y. 631, 60 N. E. 1107. See also Honour v. Equitable Soc., [1900] 1 Ch. 852; Greenway v. Gaither, Taney, 227; Flinn v. Mowry, 131 Cal. 481, 63 Pac. 724, 1006.

In Rohm v. Horst, 178 U. S. 1, 7, 44 L. Ed. 953, 20 Sup. Ct. 780, Chief Justice Fuller distinguishes the case of a note on the ground that the doctrine of anticipatory breach only applies to contracts where there are mutual obligations. This has not

before been suggested, though in fact the cases where the doctrine has been applied have been cases of bilateral contracts. Lord Cockburn's line of reasoning is certainly as applicable to unilateral as to bilateral contracts. It would be interesting to know what Chief Justice Fuller would say to the case of a promissory note given in exchange for an executory promise, or of an instrument containing mutual covenants, one of which was to pay money on a fixed day, the party bound to the money payment having repudiated his obligation before it was due.

larging the obligation of contracts is perhaps as bad as impairing it. This may be of great importance. Suppose the defendant, after saying that he will not perform, changes his mind and concludes to keep his promise. Unless the plaintiff relying on the repudiation, as he justly may, has so changed his position that he cannot go on with the contract without injury, the defendant ought surely to be allowed to do this. 29 But if the plaintiff is allowed to bring an action at once this possibility is cut off. "Why," says Fuller, C. J., " should a locus pœnitentiæ be awarded to the party whose wrongful action has placed the other at such disadvantage?" 30 Because such is the contract the parties made. A promise to perform in June does not preclude changing position in May.31

the

31

§ 1322. Necessity of election to treat repudiation as a breach. Not only, moreover, do logic and the defendant suffer, but very practical convenience which is the excuse for their suffering is not attained. A few illustrations from recent cases will show that as at present applied the doctrine of anticipatory breach is so full of pitfalls for the unwary as to be objectionable rather than advantageous practically. In a leading English case it is stated: "It would seem on principle that the declaration of such intention [not to carry out the contract] is not in itself and unless acted on by the promisee a breach of contract. . . .

29 See infra, § 1335.

30 Roehm v. Horst, 178 U. S. 1, 19, 44 L. Ed. 953, 20 Sup. Ct. 780.

31 The California Civil Code, § 1440, provides: "If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party."

This necessarily implies that if the notice is retracted the obligation

cannot be enforced without an offer to perform. Yet in California the doctrine of anticipatory breach, which in effect denies the right of retraction, is followed, and no reference is made to this section of the Code. The California cases are cited supra, § 1314, n. 1.

The same provision is contained in the Montana Civil Code, § 1956.

The North Dakota Civil Code also has copied in § 3774 this provision of the California Code, but the Supreme Court of North Dakota has denied the doctrine of anticipatory breach. Stanford v. McGill, 6 N. Dak. 536, 72 N. W. 938.