Whether he did voluntarily accept, or whether his acceptance was subject to a reserved right to recover damages for the default, is usually a question of fact, under all the circumstances of the case, and is to be determined by the jury.1

§ 1080. Where performance due in instalments.Where performance - for example, payment is due in instalments, and default has been made in one instalment so that a right of forfeiture has accrued to the other party, and the latter then accepts performance of the instalment in arrears, this, as has been seen in an earlier chapter,2 will be deemed to be a waiver of that default, unless he then gave notice that he did not thereby intend to waive his right to terminate the contract.3

2. That the Other Party is in Default.

§ 1081. Default of one party as excuse for non-performance by the other. One party to the contract may often be excused performance by reason of the fact that the other is in default. If what the other is to do is a condition precedent,if, for example, the seller is not to make the goods until the buyer sends directions, or is not to deliver them until the buyer sends a vessel to receive them, or gives the necessary shipping instructions, or prepays the freight, and the like, the seller cannot be in default for not delivering so long as the buyer neglects to do that which must be done before the seller's act is due.

executed a note under the contract. Held, that his cash payment and execution of the note were not waivers of defendant's right to sue for damages for delay.

1 Northwestern Cordage Co. v. Rice, supra, and cases cited.

2 See ante, § 909.

3 Wilkinson v. Blount Mfg. Co. (1897), 169 Mass. 374, 47 N. E. R. 1020 [citing Tuttle v. Bean, 13 Metc. (Mass.) 275; Collins v. Canty, 6 Cush. (Mass.) 415; Kimball v. Rowland, 6 Gray

(Mass.), 224; Miller v. Prescott, 163 Mass. 12, 39 N. E. R. 409; Hammacher v. Wilson, 26 Fed. Rep. 239, 241; Platt v. Fire Extinguisher Mfg. Co., 59 Fed. Rep. 897].

4 See Ault v. Dustin (1898), 100 Tenn. 366, 45 S. W. R. 981; Hinckley v. Pittsburgh Steel Co. (1887), 121 U. S. 264, 7 Sup. Ct. R. 875; Mechem's Cas. on Damages, 272.

5 See Sedgwick v. Cottenham (1880), 54 Iowa, 512; Hening v. Powell (1863), 33 Mo. 468; Hartje v. Collins (1863),

§ 1082. Buyer's failure to come or send for the goods. For this reason it has been held that where there has been a contract for the sale of unascertained goods which are to be. separated and identified when the buyer comes or sends for them, his failure to so come or send at the time agreed upon justifies the seller in deeming the contract to be abandoned by the buyer, and the seller, therefore, may make other disposition of the goods.1

$ 1083. Part performance only of entire contract.So, also, where the contract is entire and the party who is to do the first actas, in the case of the seller, to apply the goods has made default in his performance in full,— as where the seller has supplied part but not all of the goods contracted for, the other is not obliged to treat the contract as obligatory upon himself. He may, as will be hereafter seen,' waive the full performance and become liable to pay for the part received; but he is not obliged to do so: he may treat the failure of the other to deliver all as agreed as a ground for a repudiation and rescission of the whole contract.3

$ 1084. Contemporaneous acts - Default in payment. So where the, acts are to be contemporaneous-as payment and delivery,—if one party refuses or neglects to do his part, the other cannot be deemed in default for not performing on his side. Thus, where the contract provides for delivery and payment in full at a certain place or time, the failure of the purchaser, for example, to be ready at the time or place specified to pay all of the money as agreed upon, will justify the seller in deeming the contract at an end. He is not obliged to

wait longer to enable the buyer to procure the money, nor are his rights affected by a subsequent tender of the price.1

§ 1085.

And generally, as was said by Lord Blackburn in an English case," "Where there is a contract in which there are two parties, each side having something to do, if you see that the failure to perform one part of it goes to the root of the contract-goes to the foundation of the whole-it is a good defense [for one] to say, 'I am not going on to perform my part of it when that which is the root of the whole and the substantial consideration for my performance is defeated by your misconduct."",

§ 1086.

The effect of the non-performance of one instalment in a contract to be performed in instalments is considered in a later section.3

3. Renunciation of Contract.

§ 1087. Renunciation of contract by one party will excuse performance by the other.- Where before the time arrives for the performance of the contract by one party, the other abso-. lutely and unqualifiedly announces that he will neither receive such performance by the former nor perform on his own part, the former may, if he desires, consider himself as absolved from his duty to perform. This renunciation by the other, however, must be more than a mere threat of non-performance, and, a fortiori, more than mere idle talk of not performing; it

1 Beauchamp v. Archer (1881), 58 Cal. 431, 41 Am. R. 266; Dwinel v. Howard (1849), 30 Me. 258. But the party must be really in default, and a notice of rescission given prema turely will be entirely ineffectual. Thus a purchaser who agrees to pay bills daily for goods delivered has the whole of the day upon which the bills are presented in which to make payment; and the contract

cannot be rescinded in the afternoon of any day for failure to pay bills presented that day. Anglo-American Provision Co. v. Prentiss (1895), 157 Ill. 506, 42 N. E. R. 157.

2 In Mersey Steel & Iron Co. v. Nay. lor (1884), 9 App. Cas. 434. 3 Post, SS 1140 et seq.

4 King v. Faist, 161 Mass. 449, 37 N. E. R. 456; Ballou v. Billings, 136 Mass. 307.

must be a distinct, unequivocal and absolute refusal to receive performance or to perform on his own part.1

$1088. Rights of one party when the other renounces.— It of course does not lie within the power of one party to put an end to the contract without the consent of the other, though the latter, if he will, may acquiesce in its present termination, and pursue his remedies as upon a present breach. The rights and remedies of the party receiving such a notice of renunciation were well stated by Cockburn, C. J., in an English case as follows: "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 the 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

1 Dingley v. Oler, 117 U. S. 490, 29 L. ed. 984, 6 Sup. Ct. R. 850. A mere request acquiesced in is not enough. McGregor v. Ross, 96 Mich. 103, 55 N. W. R. 658. See also Edward Hines Lumber Co. v. Alley (1896), 43 U. S. App. 169, 73 Fed. R. 603, 19 C. C. A. 599.

2 Frost v. Knight, L. R. 7 Ex. 111, approved and quoted in Johnstone v. Milling, 16 Q. B. Div. 460.

The option to treat the renunciation as a present breach is one resting, not with the renouncing party, but with the other. The former cannot force the latter into the present action for its breach. This is well stated in a late case in Illinois: "Where one party to a contract gives notice before the time of performance arrives that he does not intend to perform, the other party may treat such notice as a breach

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and bring his action, or he may decline to accept such notice as a breach, and may insist that the contract shall continue in force up to the time fixed for its final performance, holding the party refusing to perform responsible for the consequences of such refusal. One party to a contract cannot, by simply refusing to carry out his part of it, compel the other to rescind it. The latter has a right to keep it alive notwithstanding such refusal." Roebling Sons' Co. v. Lock Stitch Fence Co. (1889), 130 IIL 660, 22 N. E. R. 518. To same effect: Kadish v. Young (1883), 108 Ill. 170, 48 Am. R. 548; Mechem's Cas. on Damages, 265; Leigh v. Patterson, 8 Taunt. 540; Phillpotts v. Evans, 5 M. & W. 475. See also Anglo-American Provision Co. v. Prentiss (1895), 157 IL 506, 42 N. E. R. 157.

supervening circumstance which would justify him in declining to complete it; on the other hand, 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 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."

§ 1089.. This doctrine is well settled in England, and is adopted by the majority, though not by all, of the American courts. It is also approved in a very recent case before the