After a careful review of all the cases, American and English,
relating to anticipatory breaches of an executory contract by a
refusal on the part of one party to it to perform it, the Court
holds that the rule laid down in
Hochster v. De la Tour, 2
El. & Bl. 678, is a reasonable and proper rule to be applied in
this case.
That rule is that, after the renunciation of a continuing
agreement by one party, the other party is at liberty to consider
himself absolved from any future performance of it, retaining his
right to sue for any damages he has suffered from the breach of it;
but that an option should be allowed to the injured party either to
sue immediately or to wait till the time when the act was to be
done, still holding it as prospectively binding for the exercise of
this option.
The parties to a contract which is wholly executory have a right
to the maintenance of the contractual relationships up to the time
for performance, as well as to a performance of the contract when
due.
As to the question of damages, when the action is not premature,
the plaintiff is entitled to compensation based as far as possible
on the ascertainment of what he would have suffered by the
continued breach of the other party down to the time of complete
performance, less any abatement by reason of circumstances of which
he ought reasonably to have availed himself.
This was an action for breach of four certain contracts,
brought
Page 178 U. S. 2
by Paul R. G. Horst and others against John Roehm in the Circuit
Court of the United States for the Eastern District of Pennsylvania
in January, 1897, and was tried under a stipulation, waiving a
jury, before Dallas, Circuit Judge, who made a special finding of
facts and, on the facts so found, gave judgment for plaintiffs. 84
F. 565. The case was carried by defendant to the Circuit Court of
Appeals for the Third Circuit, and the judgment of the circuit
court was affirmed. 91 F. 345. Thereupon Roehm applied to this
Court for a writ of certiorari, which was granted, and the cause
subsequently heard here.
The circuit court found that --
"On August 25th, 1893, the firm of Horst Brothers, composed of
Paul R. G. Horst, E. Clemens Horst, and Louis A. Horst, the legal
plaintiffs, entered into four written contracts with John Roehm,
the defendant, of which the following are copies:"
"
Hop Contract"
" Memorandum of agreement made and entered into by and between
Horst Brothers, doing business in the City of New York, parties of
the first part, and John Roehm, party of the second part."
" Witnesseth: That the said parties of the first part agree to
sell and deliver to the party of the second part, and that the
party of the second part agrees to purchase, pay for, and receive
from the party of the first part, one hundred (100) bales, prime
Pacific Coast hops of the crop of 1896. Three and one-half pounds
tare to be deducted on each bale. Said hops to be delivered ex dock
or store, New York City, and to be paid for in net cash ten days
from date of arrival at the rate of twenty-two (22) cents per
pound."
" Time of shipment, 20 bales each month, October, November,
December, January, and February, except as hereafter provided."
" If at any time a difference of opinion shall exist regarding
the quality or condition of any hops submitted or tendered under
this agreement, each party shall select an arbitrator, to whom the
question of the quality and condition shall be submitted,
Page 178 U. S. 3
and, in case of their disagreement, a third arbitrator shall be
selected by the two thus chosen, and the decision of a majority of
the three shall be final, and in case the decision shall be that
the hops tendered are not equal to the quality above called for,
the parties of the first part shall, within thirty days after
receipt of written notice of such decision, submit samples or
tender delivery to the party of the second part, other hops, in
fulfillment of this agreement, and party of the second part agrees
to receive same."
" In witness whereof the said parties have hereunto set their
hands, Philadelphia, this 25th day of August, 1893."
" Horst Bros."
" John Roehm"
"[Here followed a second, third, and fourth contract, of same
tenor and under same date, the second for 100 bales of the crop of
1896, to be shipped 20 bales each month, in the months of March,
April, May, June, and July; the third for 100 bales of the crop of
1897, to be shipped 20 bales each month, in the months of October,
November, December, January, and February, and the fourth for 100
bales of the crop of 1897, to be shipped 20 bales each month, in
the months of March, April, May, June, and July.]"
"The months named in each of these contracts, respectively, as
'time of shipment' must, under the custom of the trade, be
understood as meaning the months so named, which would follow next
after the summer months of the year of the crop referred to in the
particular contract."
"On June 23d 1896, the firm of Horst Brothers was dissolved, and
Paul R. G. Horst assigned to his copartners, E. Clemens Horst and
Louis A. Horst, the use plaintiffs, all the interest of him, the
said Paul R. G. Horst, in the said contracts."
"Upon June 23d, 1896, a notice, of which the following is a
copy, was addressed to and received by the defendant:"
" June 23, 1896"
" Dear Sir: We beg to inform you that the partnership of Horst
Brothers has been this day dissolved."
" Respectfully yours,"
" Horst Brothers "
Page 178 U. S. 4
"To this, under date of June 27th, 1896, the defendant replied,
saying: . . ."
"I suppose that your reason for giving me the notice is on
account of the contracts which I had with your late firm, . . .
which, of course, you cannot fulfill. I therefore consider the
contracts annulled, and will make other arrangements for the
purchase of the hops I may need, and you may consider this as
release from liability on your part to comply with the
contracts."
"In answer to this, Horst Brothers in liquidation addressed a
letter to the defendant, which he duly received, in which it was
said that he had misconstrued the notice of dissolution sent out to
the trade, that its meaning was that no new contracts would be made
and no new business undertaken by the firm of Horst Brothers, and
in which it was further stated that,"
"so far as the firm or business is concerned, the firm will
discharge its obligations and will try to collect its claims. It
does not ask for any release or discharge, and will punctually live
up to all the contracts which it has made with you."
"This communication was not replied to."
"In October, 1896, the first shipment of twenty bales of hops
under the contracts was made, and the invoice and bill of lading
covering that shipment were sent to the defendant, who, on October
24, 1896, by telegram and letter, acknowledged receipt of the bill
of lading and bill of particulars, but, upon the ground set up in
his letter of June 27, 1896, declined to receive the hops."
"At the time of the defendant's refusal to receive the shipment
above mentioned, the plaintiffs could have made subcontracts for
forward delivery according to the contracts in suit at the price of
nine cents per pound for 'prime Pacific coast hops of the crop of
1896,' and of eleven cents per pound for like hops of the crop of
1897, and the differences between the prices fixed by the contracts
sued on and those above stated, together with interest on the sum
of such differences, from October 24, 1896, to this date, are as
follows:"
"[Here followed the computation resulting in the amount for
which judgment was rendered.]"
The opinion of the circuit court of appeals stated the case
thus
Page 178 U. S. 5
"In August, 1893, Paul R. G. Horst, E. Clemens Horst, and Louis
A. Horst, trading as Horst Brothers, entered into a contract with
John Roehm, the defendant below, for the sale of one thousand bales
of prime Pacific Coast hops, to be delivered at various dates in
the future at an uniform price of twenty-two cents per pound. Of
the whole quantity, six hundred bales had been delivered, accepted,
and paid for at the contract price, so that in July, 1896, there
remained undelivered four hundred bales. These were deliverable at
the rate of twenty bales per month during each month from October,
1896, to July, 1898, both inclusive, excepting, however, from said
period the months of August and September, 1897, when no deliveries
were called for. The record shows that this contract was the result
of one negotiation, and provided for a supply of hops for five
years. Ten separate papers were drawn, each covering a period of
five months or one season. They all bear the same date and are
similar as regards the quantity of hops to be delivered and the
price to be paid. They differ only in the time of delivery and the
year's crop from which delivery was to be made. In June, 1896, the
firm of Horst Brothers was dissolved by the retirement of Paul R.
G. Horst. He assigned his interest in the Roehm contract to the
remaining partners, who continued the business under the same firm
name. Roehm, the defendant below, was notified of this dissolution
of the firm and of the transfer of Paul R. G. Horst's interest in
the contract to its successors. He thereupon gave notice to the
firm that he considered his contract cancelled thereby.
Subsequently the firm of Horst Brothers advised the defendant of
their ability and willingness to perform the contract, and under
date of September 4, 1896, wrote Roehm, as follows:"
" Dear Sir: Will you please write us whether you wish us to ship
the hops under your contract direct to your city? The contract
calls for delivery in New York, and as we ship direct from this
coast, we can ship to either city at same rate. Consequently there
will be a saving to you of freight if we ship to your city direct
from here. Awaiting your reply, we are,"
" Very truly,"
" Horst Brothers"
Page 178 U. S. 6
"To this letter Roehm replied, under date of September 14,
1896:"
" Dear Sirs: In response to your letters dated 3d and 4th inst.,
state that, before shipping me any hops, always send me samples
from which I can select lots, the same as you have been doing in
the past."
" Very truly,"
" John Roehm"
"On October 9, 1896, Horst Brothers advised Roehm of the
shipment of twenty bales of hops for the October delivery, as
called for by the contract, which Roehm, by telegraph, refused to
receive, and as supplementary thereto sent the following letter,
dated October 24, 1896:"
" Gentlemen: Yours of October 9, enclosing bill of lading and
bill of particulars per twenty bales of hops forwarded me under the
terms of contract of August 25, 1893, was received, and I have
wired you that I decline to receive the same. I notified you under
date of June 27, 1896, that, owing to the dissolution of the
copartnership with which I originally contracted and the fact that
this firm was no longer in existence, I considered my contract at
an end, and will make arrangements for purchasing my supplies
elsewhere. I am advised that I am under no obligations by that
contract to accept supplies from you. If you desire to bill these
goods at the current market rate under a new contract, I will
accept them if upon inspection they are of the quality desired;
otherwise they will remain at the freight station subject to your
order."
" Very truly,"
" John Roehm"
"No further efforts were made by Horst Brothers to make delivery
under the contract, but in January, 1897, this action was begun by
all the original parties thereto, to the use of the firm as at
present constituted, to recover damages for its breach. Judgment
was rendered in favor of the plaintiffs."
The contention that Roehm was entitled to treat the contract as
determined by the retirement of one of the members of the
Page 178 U. S. 7
firm of Horst Brothers, and the assignment of his interest to
his copartners, was not renewed in this Court.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
It is conceded that the contracts set out in the finding of
facts were four of ten simultaneous contracts, for one hundred
bales each, covering the furnishings of one thousand bales of hops
during a period of five years, of which six hundred bales had been
delivered and paid for. If the transaction could be treated as
amounting to a single contract for one thousand bales, the breach
alleged would have occurred while the contract was in the course of
performance; but plaintiffs' declaration or statement of demand
averred the execution of the four contracts, "two for the purchase
and sale of Pacific Coast hops of the crop of 1896, and two for the
purchase and sale of Pacific Coast hops of the crop of 1897," set
them out
in extenso, and claimed recovery for breach
thereof, and in this view of the case, while as to the first of the
four contracts, the time to commence performance had arrived, and
the October shipment had been tendered and refused, the breach as
to the other three contracts was the refusal to perform before the
time for performance had arrived.
The first contract falls within the rule that a contract may be
broken by the renunciation of liability under it in the course of
performance and suit may be immediately instituted. But the other
three contracts involve the question whether, where the contract is
renounced before performance is due and the renunciation goes to
the whole contract, and is absolute and unequivocal, the injured
party may treat the breach as complete and bring his action at
once. Defendant repudiated all
Page 178 U. S. 8
liability for hops of the crop of 1896 and of the crop of 1897,
and notified plaintiffs that he should make (according to a letter
of his attorney in the record that he had made) arrangements to
purchase his stock of other parties, whereupon plaintiffs brought
suit. The question is therefore presented, in respect of the three
contracts, whether plaintiffs were entitled to sue at once or were
obliged to wait until the tie came for the first month's delivery
under each of them.
It is not disputed that if one party to a contract has destroyed
the subject matter or disabled himself so as to make performance
impossible, his conduct is equivalent to a breach of the contract,
although the time for performance has not arrived, and also that if
a contract provides for a series of acts and actual default is made
in the performance of one of them, accompanied by a refusal to
perform the rest, the other party need not perform, but may treat
the refusal as a breach of the entire contract, and recover
accordingly.
And the doctrine that there may be an anticipatory breach of an
executory contract by an absolute refusal to perform it has become
the settled law of England as applied to contracts for services,
for marriage, and for the manufacture or sale of goods. The cases
are extensively commented on in the notes to
Cutter v.
Powell, 2 Smith's Leading Cases 1212, 1220, 9th edition by
Richard Henn Collins and Arbuthnot. Some of these, though quite
familiar, may well be referred to.
In
Hochster v. De la Tour, 2 El. & Bl. 678,
plaintiff, in April, 1852, had agreed to serve defendant, and
defendant had undertaken to employ plaintiff as courier for three
months from June first, on certain terms. On the 11th of May,
defendant wrote plaintiff that he had changed his mind, and
declined to avail himself of plaintiff's services. Thereupon, and
on May 22d, plaintiff brought an action at law for breach of
contract in that defendant, before the said first of June, though
plaintiff was always ready and willing to perform, refused to
engage plaintiff or perform his promise, and then wrongfully
exonerated plaintiff from the performance of the agreement, to his
damage. And it was ruled that, as there could be a breach of
contract before the time fixed for performance, a positive and
Page 178 U. S. 9
absolute refusal to carry out the contract prior to the date of
actual default amounted to such a breach.
In the course of the argument, Mr. Justice Crompton
observed:
"When a party announces his intention not to fulfill the
contract, the other side may take him at his word and rescind the
contract. That word 'rescind' implies that both parties have agreed
that the contract shall be at an end, as if it had never been. But
I am inclined to think that the party may also say:"
"Since you have announced that you will not go on with the
contract, I will consent that it shall be at an end from this time,
but I will hold you liable for the damage I have sustained, and I
will proceed to make that damage as little as possible by making
the best use I can of my liberty."
In delivering the opinion of the court (Campbell, C.J.,
Coleridge, Erle, and Crompton, JJ.), Lord Campbell, after pointing
out that at common law there were numerous cases in which an
anticipatory act, such as an act rendering the contract impossible
of performance, or disabling the party from performing it, would
constitute a breach giving an immediate right of action, laid it
down that a positive and unqualified refusal by one party to carry
out the contract should be treated as belonging to the same
category as such anticipatory acts, and said:
"But it is surely much more rational, and more for the benefit
of both parties, that after the renunciation of the agreement by
the defendant, the plaintiff should be at liberty to consider
himself absolved from any future performance of it, retaining his
right to sue for any damage he has suffered from the breach of it.
Thus, instead of remaining idle and laying out money in
preparations which must be useless, he is at liberty to seek
service under another employer, which would go in mitigation of the
damages to which he would otherwise be entitled for a breach of the
contract. It seems strange that the defendant, after renouncing the
contract and absolutely declaring that he will never act under it,
should be permitted to object that faith is given to his assertion
and that an opportunity is not left to him of changing his mind. If
the plaintiff is barred of any remedy by entering into an
engagement inconsistent with starting as a courier with the
defendant on the 1st June, he is
Page 178 U. S. 10
prejudiced by putting faith in the defendant's assertion, and it
would be more consonant with principle if the defendant were
precluded from saying that he had not broken the contract when he
declared that he entirely renounced it. Suppose that the defendant,
at the time of his renunciation, had embarked on a voyage for
Australia so as to render it physically impossible for him to
employ the plaintiff as a courier on the continent of Europe in the
months of June, July, and August, 1852; according to decided cases,
the action might have been brought before the first of June; but
the renunciation may have been founded on other facts, to be given
in evidence, which would equally have rendered the defendant's
performance of the contract impossible. The man who wrongfully
renounces a contract into which he has deliberately entered cannot
justly complain if he is immediately sued for a compensation in
damages by the man whom he had injured, and it seems reasonable to
allow an option to the injured party, either to sue immediately, or
to wait till the time when the act was to be done, still holding it
as prospectively binding for the exercise of this option, which may
be advantageous to the innocent party, and cannot be prejudicial to
the wrongdoer. An argument against the action before the first of
June is urged from the difficulty of calculating the damages, but
this argument is equally strong against an action before the first
of September, when the three months would expire. In either case,
the jury, in assessing the damages, would be justified in looking
to all that had happened or was likely to happen to increase or
mitigate the loss of the plaintiff down to the day of trial. We do
not find any decision contrary to the view we are taking of this
case."
In
Frost v. Knight, L.R. 7 Exch. 111, defendant had
promised to marry plaintiff so soon as his (defendant's) father
should die. While his father was yet alive, he absolutely refused
to marry plaintiff, and it was held in the Exchequer Chamber,
overruling the decision of the Court of Exchequer, L.R. 5 Exch.
322, that for this breach an action was well brought during the
father's lifetime. Cockburn, C.J., said:
"The law with reference to a contract to be performed at a
future time, where the party bound to performance announces prior
to the time his intention
Page 178 U. S. 11
not to perform it, as established by the cases of
Hochster
v. De la Tour, 2 E. & B. 678, and the
Danube &
Black Sea Company v. Xenos, 13 C.B. (N.S.) 825, on the one
hand, and
Avery v. Bowden, 5 E. & B. 714;
Reid v.
Hoskins, 6 E. & B. 953, and
Barrick v. Buba, 2
C.B. (N.S.) 563, on the other, may be thus stated. 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
nonperformance, 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 his own 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 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 the
nonperformance 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."
The case of
Danube Company 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 shipment 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
Page 178 U. S. 12
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 second of August. B thereupon sued A for
refusing to receive the goods pursuant to his contract, and A
brought a cross action against B for refusing to ship. Upon a
special case stating these facts,
held that it was
competent to B to treat A'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, 17 Q.B. 127, it was held that,
upon the company's 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 E. & B. 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 E. & B. 714, 6
E. & B. 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 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, 16 Q.B.Div. 467, Lord Esher,
Master
Page 178 U. S. 13
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's 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.
Page 178 U. S. 14
In
Smoot's Case,
15 Wall. 36,
82 U. S. 48, Mr.
Justice Miller observed:
"In the case of
Phillpotts v. Evans, 5 M. & 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 E. & B. 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 Life Insurance Company,
111 U. S. 264, 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 complainant 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
Page 178 U. S. 15
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, 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,
121 U. S. 264,
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 plaintiff's 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 Mining Company v. Humble, 153 U.
S. 540, 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 wrongdoing of the other party has brought about."
In
Pierce v. Tennessee Coal & Railroad Company,
173 U. S. 1, 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
Page 178 U. S. 16
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 Life Insurance Company, Red.Cas.
402,
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, 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 F. 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, 59 F.
83;
Hines Lumber Company v. Alley, 73 F. 603;
Marks v.
Van Eeghen, 85 F. 853.
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.
*
On the other hand, in
Greenway v. Gaither, Taney
227,
Page 178 U. S. 17
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, 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, MR.
JUSTICE PECKHAM, then a member of the Court of Appeals of New York,
thus expresses the distinction:
"It is 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
Page 178 U. S. 18
obligations interdependent. 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 of
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 of 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."
We think it obvious that both as to renunciation after
commencement of performance and renunciation before the time for
performance has arrived, money contracts, pure and simple, stand on
a different footing from executory contracts for the purchase and
sale of goods.
The other proposition on which the case of
Daniels v.
Newton was rested is that, until the time for performance
arrives, neither contracting 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
performance, 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 performance 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
Page 178 U. S. 19
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
renunciation 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 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 maintenance
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 poenitentiae 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
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
Page 178 U. S. 20
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 Railway
Company, 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 contract for the supply of hops for five years in installments,
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 reasons 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.
As to the question of damages, if the action is not premature,
the rule is applicable that plaintiff is entitled to compensation
based, as far as possible, on the ascertainment of what he would
have suffered by the continued breach of the other party down to
the time of complete performance, less any abatement by
Page 178 U. S. 21
reason of circumstances of which he ought reasonably to have
availed himself. If a vendor is to manufacture goods, and during
the process of manufacture, the contract is repudiated, he is not
bound to complete the manufacture and estimate his damages by the
difference between the market price and the contract price, but the
measure of damage is the difference between the contract price and
the cost of performance.
Hinckley v. Pittsburgh Company,
121 U. S. 264.
Even if in such cases the manufacturer actually obtains his profits
before the time fixed for performance and recovers on a basis of
cost which might have been increased or diminished by subsequent
events, the party who broke the contract before the time for
complete performance cannot complain, for he took the risk involved
in such anticipation. If the vendor has to buy, instead of to
manufacture, the same principle prevails, and he may show what was
the value of the contract by showing for what price he could have
made subcontracts, just as the cost of manufacture in the case of a
manufacturer may be shown. Although he may receive his money
earlier in this way, and may gain or lose by the estimation of his
damage in advance of the time for performance, still, as we have
seen, he has the right to accept the situation tendered him, and
the other party cannot complain.
In this case, plaintiffs showed at what prices they could have
made subcontracts for forward deliveries according to the contracts
in suit, and the difference between the prices fixed by the
contracts sued on and those was correctly allowed.
Judgment affirmed.
*
Fox v. Kitton, 19 Ill. 518;
Kadish v. Young,
108 Ill. 170;
John A. Roepling's Sons' Co. v. Lock Co.,
130 Ill. 660;
Lake Shore R. Co. v. Richards, 152 Ill. 59;
Burtis v. Thompson, 42 N.Y. 246;
Windmuller v.
Pope, 107 N.Y. 674;
Mountjoy v. Metzger, 9 Phila. 10;
Zuck v. McClure, 98 Pa. 541;
Hocking v. Hamilton,
158 Pa. 107;
Dugan v. Anderson, 36 Md. 567;
Hosmer v.
Wilson, 7 Mich. 294;
Platt v. Brand, 26 Mich. 173;
Crabtree v. Messersmith, 19 Ia. 179;
McCormick v.
Basal, 46 Ia. 235;
Kurtz v. Frank, 76 Ind. 594;
Cobb v. Hall, 33 Vt. 233;
Davis v. Grand Rapids
Co., 41 W.Va. 717, and other cases cited in the textbooks and
encyclopaedias.
