wholesale dealer, but before shipment or other appropriation the order is recalled. In respect of these cases the law is well not intimated that in the bald case of a party bound to pay a promissory note which rests in the hands of the payee, but which is not yet due, such note can be made due by any notice of the maker that he does not intend to pay it when it matures. We decide simply this case where there are material provisions and obligations interpendent. In such case, and where one party is bound, from time to time, as expressed, to deliver part of an aggregate and specified amount of property to another, who is to pay for each parcel delivered at a certain time and in a certain way, a refusal to be further bound by the terms of the contract or to accept further deliveries, and a refusal to give the notes already demandable for a portion of the property that has been delivered, and a refusal to give any more notes at any time or for any purpose in the future, or to pay moneys at any time, which are eventually to be paid under the contract, all this constitutes a breach of the contract as a whole, and gives a present right of action against the party so refusing to recover damages which the other may sustain by reason of this refusal.' ing party can suffer any injury which can form a ground of damages. Wells, J., said: 'An executory contract ordinarily confers no title or interest in the subject-matter of the agreement. Until the time arrives when by the terms of the agreement he is or might be entitled to its performance, he can suffer no injury or deprivation which can form a ground of damages. There is neither violation of right, nor loss upon which to found an action.' "But there are many cases in which, before the time fixed for per formance, one of the contracting parties may do that which amounts to a breach and furnishes a ground of damages. It has always been the law that where a party deliberately incapacitates himself or renders per formance of his contract impossible, his act amounts to an injury to the other party, which gives the other party a cause of action for breach of contract; yet this would seem to be inconsistent with the reasoning in Daniels v. Newton, though it is not there in terms decided that an absolute refusal to perform a contract, after the time and under the conditions in which plaintiff is entitled to require performance, is not a breach of the contract, even although the contract is by its terms to continue in the future.' Parker v. Russell, 133 Mass. 74. "In truth, the opinion goes upon a distinction between cases of renunci. ation before the arrival of the time of performance and those of renunciation of unmatured obligations of a contract while it is in course of performance, and it is said that before settled that a party to an executory contract may always stop performance on the other side by an explicit direction to that effect, though he thereby subjects himself to the payment of such damages as will compensate the other for the loss he has the argument on the ground of convenience and mutual advantage to the parties can properly have weight, 'the point to be reached must first be shown to be consistent with logical deductions from the strictly legal aspects of the case.' "We think that there can be no controlling distinction on this point between the two classes of cases, and that it is proper to consider the reasonableness of the conclusion that the absolute renunciation of particular contracts constitutes such a breach as to justify immediate action and recovery therefor. The parties to a contract which is wholly executory have a right to the main tenance of the contractual relations up to the time for performance, as well as to a performance of the contract when due. If it appear that the party who makes an absolute refusal intends thereby to put an end to the contract so far as performance is concerned, and that the other party must accept this position, why should there not be speedy action and settlement in regard to the rights of the parties? Why should a locus pœnitentiæ be awarded to the party whose wrongful action has placed the other at such disadvantage? What reasonable distinction per se is there between liability for a refusal to perform future acts to be done under a contract in course of performance and liability for a refusal to perform the whole contract made before the time for a commencement of performance? "As Lord Chief Justice Cockburn observed in Frost v. Knight, the promisee has the right to insist on the contract as subsisting and effective before the arrival of the time for its performance, and its unimpaired and unimpeached efficacy may be essential to his interests, dealing as he may with rights acquired under it in various ways for his benefit and advantage. And of all such advantage, the repudiation of the contract by the other party, and the announcement that it never will be fulfilled, must of course deprive him. While, by acting on such repudiation and the taking of timely measures, the promisee may in many cases avert, or, at all events, materially lessen, the injurious effects which would otherwise flow from the nonfulfillment of the contract. "During the argument of Cort v. Ambergate, N. & B. & E. Junction R. Co., 17 Q. B. 127, Erle, J., made this suggestion: 'Suppose the contract was that plaintiff should send a ship to a certain port for cargo, and defendant should there load one on board; but defendant wrote word that he could not furnish a cargo; must the ship be sent to return empty?' And if it was not necessary for the ship-owner to send his ship, it is not perceived why he should be compelled to wait until the time fixed for the loading of the ship at the remote port before bringing suit upon the contract. "If in this case these ten hop contracts had been written into one con sustained by reason of having his performance checked at that stage in its progress.1 § 1092. —. The contract is not rescinded, but broken; and while the other party has the right to deem it in force for the purpose of the recovery of his damages, he is under no obligation, for that purpose, to tender complete performance,2 nor has tract for the supply of hops for five years in instalments, then when the default happened in October, 1896, it cannot be denied that an immediate action could have been brought in which damages could have been recovered in advance for the breach of the agreement to deliver during the two remaining years. But treating the four outstanding contracts as separate contracts, why is it not equally reasonable that an unqualified and positive refusal to perform them constitutes such a breach that damages could be recovered in an immediate action? Why should plaintiff be compelled to bring four suits instead of one? For the rea sons above stated, and having reference to the state of the authorities on the subject, our conclusion is that the rule laid down in Hochster v. De la Tour is a reasonable and proper rule to be applied in this case and in many others arising out of the transactions of commerce of the present day." 1 Davis v. Bronson (1891), 2 N. D. 300, 33 Am. St. R. 783, 16 L. R. A. 655, 50 N. W. R. 836; Gibbons v. Bente, 51 Minn. 499, 22 L. R. A. 80, 53 N. W. R. 756; Clark v. Marsiglia, 1 Denio (N. Y.), 317, 43 Am. Dec. 670; Danforth v. Walker, 37 Vt. 239, 40 Vt. 257; Moline Scale Co. v. Beed, 52 Iowa, 307, 3 N. W. R. 96, 35 Am. R. 272; Butler v. Butler, 77 N. Y. 472, 33 Am. R. 648; Collins v. Delaporte, 115 Mass. 159; Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 536, 17 Am. St. R. 788, 18 Atl. R. 1058; Hosmer v. Wil son, 7 Mich. 294, 74 Am. Dec. 716; Derby v. Johnson, 21 Vt. 17; Ault v. Dustin (1897), 100 Tenn. 366, 45 S. W. R. 981. 2 In Cort v. Ambergate, etc. Ry. Co., 17 Q. B. 127, 79 Eng. Com. L 126, Lord Campbell, C. J., says: “We think we are justified, on principle and without trenching on any former decision, in holding that, when there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, gives notice to the vendor not to manufacture any more, as he has no occasion for them and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of contract." To same effect: Hosmer v. Wilson, supra [followed in Platt v. Brand (1872), 26 Mich. 137]; Walsh v. Myers (1896), 92 Wis. 397, 66 N. W. R. 250; Farwell v. Solomon (1898), 170 Mass. 457, 49 N. E. R. 738; Clement & Hawkes Manufacturing Co. v. Meserole (1871), 107 Mass. 362; Eckenrode v. Canton Chemical Co. (1880), 55 Md. 51; Textor & Bro. v. Hutchings (1884), he the right to unnecessarily enhance the damages by proceeding, after the countermand, to finish his undertaking.1 His remedy will be an action for the breach of the contract, and not for goods sold or for labor and materials; and he is entitled to pursue his remedy at once, the direction of the defendant not to proceed being equivalent, for this purpose, to an absolute physical prevention by the defendant.2 4. That the Buyer has Become Insolvent. $1093. When buyer on credit becomes insolvent seller may decline to perform.— Analogous to the cases referred to in the preceding subdivision are those in which the buyer be 62 Md. 150; McCormick v. Basal (1877), 46 Iowa, 235; Zuck v. McClure (1881), 98 Pa. St. 541; Windmuller v. Pope (1887), 107 N. Y. 674, 14 N. E. R. 436; Haines v. Tucker (1870), 50 N. H. 307. 1 Hosmer v. Wilson (1859), 7 Mich. 294, 74 Am. Dec. 716; Danforth v. Walker (1864), 37 Vt. 239; Dillon v. Anderson (1870), 43 N. Y. 231; Unexcelled Fire Works Co. v. Polites (1890), 130 Pa. St. 536, 17 Am. St. R. 788, 18 Atl. R. 1058. 2 Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Moline Scale Co. v. Beed, 52 Iowa, 307, 3 N. W. R. 96, 35 Am. R. 272; Butler v. Butler, 77 N. Y. 472, 33 Am. R. 648; Allen v. Jarvis, 20 Conn. 38. In Unexcelled Fire Works Co. v. Polites (1890), 130 Pa. St. 536, 17 Am. St. R. 788, 18 Atl. R. 1058, it appeared that early in the year defendant had ordered a quantity of fireworks from plaintiff, the manufacturer, to be subsequently shipped. After the manufacturer had gotten his stock manufactured, but before any particular goods had been appropriated to this order, defendant countermanded it. Plaintiff replied that nevertheless the goods would be shipped in pursuance of the contract. They were so shipped; the defendant refused to receive t..em; the carrier refused to retain them in its possession, and plaintiff took them back and placed them in storage subject to the defendant's order. The action was to recover the price. Said the court: "It is plain that the notice given to the plaintiffs by the defendant not to ship the goods was a repudiation of the contract; it was not a rescission, for it was not in the power of any one of the parties to rescind; but it was a refusal to receive the goods, not only in advance of the delivery, but before they were separated from the bulk and set apart to the defendant; the direction not to ship was a revocation of the carrier's agency to receive; and the plaintiffs thereby had notice of the revocation. The delivery of the goods to the carrier, therefore, was unauthorized, and the carrier's receipt would not charge the defendant. The plaintiffs made the carrier their agent for delivery, but the goods were in fact not delivered. comes insolvent before the time for the delivery of the goods. Not now referring to the matter of the seller's lien,- which is discussed in a later chapter,—it is said to be the rule that "the seller, notwithstanding he may have agreed to allow credit for the goods, is not bound to deliver any more goods under the contract until the price of the goods not yet delivered is tendered to him; and that, if a debt is due to him for goods already delivered, he is entitled to refuse to deliver any more till he is paid the debt due for those already delivered, as well as the price of those still to be delivered."1 § 1094. The insolvency of the buyer does not of itself, of course, rescind the contract; and, if the buyer or those who represent him tender the price, the seller would be bound to deliver. But where the buyer or his representative does not thus indicate an intention to go on with the contract, the seller may treat it as an abandonment or renunciation on the part of the buyer, and therefore as a ground for rescission on his part. § 1095. But while the seller may thus treat the contract as rescinded, he is not obliged to do so, but may insist upon its performance. He must, however, in this event show that he tendered performance in accordance with the contract, including even, it is said, the delivery upon credit as agreed.* 5. That the Other Party is Unable to Perform. 1096. Buyer may repudiate where seller unable to convey title. The fact that one party is entirely unable to perform his undertaking may be a sufficient justification to the other for A delivery was tendered by the carrier when the goods arrived at their destination, but they were not re ceived. The action, therefore, could not be for the price, but for special damages for a refusal to receive the goods when the delivery was tendered." 2 Ex parte Chalmers, supra; Morgan v. Bain (1874), L. R. 10 C. P. 15; Ex parte Stapleton (1879), 10 Ch. Dir. 586; Florence Mining Co. v. Brown (1887), 124 U. S. 385. 3 Florence Mining Co. v. Brown, supra. 4 Per Brett, J., in Morgan v. Bain, 1 Ex parte Chalmers (1873), L. R. 8 supra. Ch. App. 289. |