stances which may have afforded him the means of mitigating his loss.'

"The case of Danube & B. S. Railway & K. Harbour Co. v. Xenos, 11 C. B. (N. S.) 152, is stated in the headnotes thus: On the 9th of July, A, by his agent, agreed to receive certain goods of B on board his ship to be carried to a foreign port, the ship ment to commence on the 1st of August. On the 21st of July A wrote to B, stating that he did not hold himself responsible for the contract, the agent having no authority to make it; and on the 23d he wrote again, offering a substituted contract, but still repudiating the original contract. B, by his attorneys, gave A notice that he should hold him bound by the original contract, and that, if he persisted in refusing to perform it, he (B) should forthwith proceed to make other arrangements for forwarding the goods to their destination and look to him for any loss. On the 1st of August A again wrote to B, stating that he was then prepared to receive the goods on board his ship, making no allusion to the original contract. B had, however, in the meantime, entered into a negotiation with one S for the conveyance of the goods by another ship, which negotiation ended in a contract for that purpose with S on the 2d of August. B thereupon sued A for refusing to receive the goods pursuant to his contract, and A

1 Ault v. Dustin (1897), 100 Tenn. 366, 45 S. W. R. 981 (quoting Keener's Selections on Contracts, II, p. 924);

brought a cross-action against B for refusing to ship. Upon a special case stating these facts, held, that it was competent to A to treat B's renunciation as a breach of the contract; and that the fact of such renunciation afforded a good answer to the cross-action of A, and sustained B's plea that before breach A discharged him from the performance of the agreement.

"Erle, C. J., said (p. 175): 'In Cort v. Ambergate, N. & B. & E. Junction R. Co., 17 Q. B. 127, it was held that, upon the company giving notice to Mr. Cort that they would not receive any more of his chairs, he might abstain from manufacturing them and sue the company for the breach of contract without tendering the goods for their acceptance. So, in Hochster v. De la Tour, 2 El. & Bl. 678, it was held that the courier whose services were engaged for a period to commence from a future day, being told before that day that they would not be accepted, was at liberty to treat that as a complete breach and to hire himself to another party. And the boundary is equally well ascertained on the other side. Thus, in Avery v. Bowden, 5 El. & Bl. 714, 6 El. & Bl. 953, where the agent of the charterer intimated to the captain that, in consequence of the breaking out of the war, he would be unable to furnish him with a cargo, and wished the captain to sail away, and the latter did not do so, it was not to fall within

Johnstone v. Milling, L. R. 16 Q. B. Div. 460.

the principle already adverted to, and not to amount to a breach or renunciation of the contract. But where there is an explicit declaration by the one party of his intention not to perform the contract on his part, which is accepted by the other as a breach of the contract, that beyond all doubt affords a cause of action.' "The case was heard on error in the exchequer chamber before Cockburn, C. J., Pollock, C. B., Wightman, J., Crompton, J., Channell, B., and Wilde, B.; and the judgment of the common pleas was unanimously affirmed. 13 C. B. (N. S.) 825.

"In Johnstone v. Milling, L. R. 16 Q. B. Div. 467, Lord Esher, Master of the Rolls, puts the principle thus: 'When one party assumes to renounce the contract, that is, by anticipation refuses to perform it, he thereby, so far as he is concerned, declares his intention then and there to rescind the contract. Such a renunciation does not of course amount to a rescission of the contract, because one party to a contract cannot by himself rescind it, but by wrongfully making such a renunciation of the contract he entitles the other party, if he pleases, to agree to the contract being put an end to, subject to the retention by him of his right to bring an action in respect of such wrongful rescission. The other party may adopt such renunciation of the contract by so acting upon it as in effect to declare that he too treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation.'

"Lord Justice Bowen said (p. 472): 'We have, therefore, to consider upon what principles and under what circumstances it must be held that a promisee, who finds himself confronted with a declaration of intention by the promisor not to carry out the contract when the time for performance arrives, may treat the contract as broken and sue for the breach thereof. It would seem on principle that the declaration of such intention by the promisor is not in itself and unless acted on by the promisee a breach of the contract; and that it only becomes a breach when it is converted by force of what follows it into a wrongful renunciation of the contract. Its real operation appears to be to give the promisee the right of electing either to treat the declaration as brutum fulmen, and, holding fast to the contract, to wait till the time for its performance has arrived, or to act upon it and treat it as a final assertion by the promisor that he is no longer bound by the contract, and a wrongful renunciation of the contractual relation into which he has entered. But such declaration only becomes a wrongful act if the promisee elects to treat it as such. If he does so elect it becomes a breach of contract and he can recover upon it as such.'

"The doctrine which thus obtains in England has been almost universally accepted by the courts of this country, although the precise point has not been ruled by this court.

"In Smoot's Case, 15 Wall. 36, 48, sub nom. United States v. Smoot, 21 L. ed. 107, 110, Mr. Justice Miller observed: 'In the case of Phillpotts v. Evans. 5

Mees. & W. 475, the defendant, who had agreed to receive and pay for wheat, notified the plaintiff, before the time of delivery, that he would not receive it. The plaintiff tendered the wheat at the proper time, and the only question raised was whether the measure of damages should be governed by the price of the wheat at the time of the notice or at the time of the tender. Baron Parke said: "I think no action would have lain for the breach of the contract at the time of the notice, but that plaintiff was bound to wait until the time of delivery to see whether the defendant would then receive it. The defendant might have chosen to take it and would have been guilty of no breach of contract. His contract was not broken by his previous declaration that he would not accept." And though some of the judges in the subsequent case of Hochster v. De la Tour, 2 El. & Bl. 678, disapprove very properly of the extreme ground taken by Baron Parke, they all agree that the refusal to accept, on the part of the defendant, in such case, must be absolute and unequivocal, and must have been acted on by the plaintiff.'

"In Lovell v. St. Louis Mut. L. Ins. Co., 111 U. S, 264, 28 L. ed. 423, 4 Sup. Ct. R. 390, a life insurance company had terminated its business and transferred its assets and policies to another company, and the court held that this in itself authorized the insured to treat the contract as at an end, and to sue to recover back the premiums already paid, although the time for the performance of the obligation of the insurance company, to wit, the death of the insured, had not

arrived. Mr. Justice Bradley, delivering the opinion of the court, said: 'Our third conclusion is that, as the old company totally abandoned the performance of its contract with the complainant by transferring all its assets and obligations to the new company, and as the contract is executory in its nature, the complain. ant had a right to consider it as determined by the act of the company, and to demand what was justly due to him in that exigency. Of this we think there can be no doubt. Where one party to an executory contract prevents the performance of it, or puts it out of his own power to perform it, the other party may regard it as terminated and demand whatever damage he has sustained thereby.'

"In Dingley v. Oler, 117 U. S. 490, 29 L. ed. 984, 6 Sup. Ct. R. 850, it was held that the case did not come within the rule laid down in Hochster v. De la Tour, but within Avery v. Bowden and Johnstone v. Milling, since, in the view entertained by the court, there was not a renunciation of the contract by a total refusal to perform.

"So in Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 264, 30 L. ed. 920, 923, 7 Sup. Ct. R. 882, involving a contract for the delivery of iron ore, the court said: 'The necessary conclusion is that the defendant was justified in refusing to accept any of the iron shipped in 1881; and whether the notice previously given by the defendant to the plaintiff, that it would not accept under the contract any iron made after December 31, 1880, might have been treated by the plaintiffs as a renunciation

and a breach of the contract, need not be considered, because the plaintiffs did not act upon it as such.'

“In Anvil Min. Co. v. Humble, 153 U. S. 540, 38 L. ed. 814, 14 Sup. Ct. R. 876, performance had been commenced, but completion was prevented by defendant, and Mr. Justice Brewer, speaking for the court, said: 'Whenever one party thereto is guilty of such a breach as is here attributed to the defendant the other party is at liberty to treat the contract as broken and desist from any further effort on his part to perform; in other words, he may abandon it, and recover as damages the profits which he would have received through full performance. Such an abandonment is not technically a rescission of the contract, but is merely an acceptance of the situation which the wrong doing of the other party has brought about.'

"In Pierce v. Tennessee Coal, L. & R. Co., 173 U. S. 1, 43 L. ed. 591, 19 Sup. Ct. R. 335, it was held that on discharge from a contract of employment the party discharged might elect to treat the contract as absolutely and finally broken, and in an action recover the full value of the contract to him at the time of the breach, including all that he would have received in the future as well as in the past, deducting any sum that he might have earned or that he might thereafter earn; and Mr. Justice Gray said: "The plaintiff was not bound to wait to see if the defendant would change its decision and take him back into its service; or to resort to successive actions for damages from time to time; or to

leave the whole of his damages to be recovered by his personal representatives after his death. But he had the right to elect to treat the contract as absolutely and finally broken by the defendant; to maintain this action, once for all, as for a total breach of the entire contract.'

"In Hancock v. New York L Ins Co., Fed. Cas. No. 6,011, Hochster v. De la Tour was followed by Bond, J., in the circuit court for the eastern district of Virginia; and in Grau v. McVicker, 8 Biss. 13, Fed. Cas. No 5,708, Drummond, J., fully approved of the principles decided in that case, and remarked: 'It seems to me that it is the better rule to hold that the party who has refused to perform his contract is liable at once to an action, and that whatever arises afterwards, or may arise in consequence of the time not having come or not having expired, should be considered in estimating the damages.'

“Again, in Dingley v. Oler, 11 Fed. R. 372, Lowell, J., applied the rule in the circuit court for the district of Maine, and, after citing Hochster v. De la Tour, Frost v. Knight, and other cases, said: 'These cases seem to me to be founded in good sense, and to rest on strong grounds of convenience, however difficult it may be to reconcile them with the strictest logic.' And see Foss-Schneider Brewing Co. v. Bullock, 16 U. S. App. 311, 59 Fed. R. 83, 8 C. C. A. 14; Edward Hines Lumber Co. v. Alley, 43 U. S App. 169, 73 Fed. R. 603, 19 C. C. A. 599; Marks v. Van Eeghen, 57 U. S. App. 149, 85 Fed. R. 853, 30 C. C. A. 208.

"The great weight of authority in

the State courts is to the same effect, as will appear by reference to the cases cited in the margin. (Fox v. Kitton, 19 Ill. 518; Kadish v. Young, 108 III. 170, 48 Am. R. 548; John A. Roebling's Sons' Co. v. Lock-Stitch Fence Co., 130 Ill. 660, 22 N. E. R. 518; Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, 30 L. R. A. 33, 38 N. E. R. 773; Burtis v. Thompson, 42 N. Y. 246, 1 Am. R. 516; Windmuller v. Pope, 107 N. Y. 674, 14 N. E R. 436; Mountjoy v. Metzger, 9 Phila. 10; Zuck v. McClure, 98 Pa. St. 541; Hocking v. Hamilton, 158 Pa. St. 107, 27 Atl. R. 836; Dugan v. Anderson, 36 Md. 567, 11 Am. R. 509; Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Platt v. Brand, 26 Mich. 173; Crabtree v. Messersmith, 19 Iowa, 179; McCormick v. Basal, 46 Iowa, 235; Kurtz v. Frank, 76 Ind. 594, 40 Am. R. 275; Cobb v. Hall, 33 Vt. 233; Davis v. Grand Rapids School Furniture Co., 41 W. Va. 717, 24 S. E. R. 630; and other cases cited in the text books and encyclopædias.)

"On the other hand, in Greenway v. Gaither. Taney, 227, Fed. Cas. No. 5,788, Mr. Chief Justice Taney, sitting on circuit in Maryland, declined to apply the rule in that particular case. The cause was tried in November, 1851, and more than two years after, at November term, 1853, application was made to the chief justice to seal a bill of exceptions. Hochster v. De la Tour was decided in June, 1853, and the decision of the circuit court had apparently been contrary to the rule laid down in that case. The chief justice refused to seal the bill, chiefly on the ground that under the circumstances the application came

too late, but also on the ground that there was no error, as the rule was only applicable to contracts of the special character involved in that case, and the chief justice said as to the contract in hand, by which defendant engaged to pay certain sums of money on certain days: 'It has never been supposed that notice to the holder of a bond or a promissory note, or bill of exchange, that the party would not (from any cause) comply with the contract, would give to the holder an immediate cause of action upon which he might sue before the time of payment arrived.'

"The rule is disapproved in Daniels v. Newton, 114 Mass. 530, and in Stanford v. McGill, 6 N. D. 536, 38 L. R. A. 760, 72 N. W. R. 938, on elaborate consideration. The opinion of Judge Wells in Daniels v. Newton is generally regarded as containing all that could be said in opposition to the decision of Hochster v. De la Tour, and one of the propositions on which the opinion rests is that the adoption of the rule in the instance of ordinary contracts would necessitate its adoption in the case of commercial paper. But we are unable to assent to that view. In the case of an ordinary money contract, such as a promissory note or a bond, the consideration has passed: there are no mutual obligations; and cases of that sort do not fall within the reason of the rule.

"In Nichols v. Scranton Steel Co., 137 N. Y. 487, 33 N. E. R. 566, Mr. Justice Peckham, then a member of the court of appeals of New York, thus expresses the distinction: 'It is