damages although the latter had expressed his willingness to take the cargo of tea at the time agreed upon, it being clear that the buyer's intention if he took the tea was to treat it as a performance under the first contract and not to comply with the terms of the contract which actually bound the parties.31 The only possible breach that could be stated in a declaration against the defendant in the case would be not that he refused to take the tea but that he refused to take it under his promise in the original contract. § 1295. Renewed offers of performance. Frequently by the terms of a contract a promisor is given a period of time at any moment of which he may make the agreed performance. Such a contract will not be broken until the agreed period has elapsed.32 This is true even though the promisor may have made a defective attempt to perform at an earlier day.33 If, however, the conduct of the promisor justifies the promisee in believing that no further performance will be rendered, the promisee is justified in changing his position and thereafter a tender of full performance will be ineffectual. 34 Also, a contract to marry is an exception to the general rule. One who has agreed to marry at a future day, and who repudiates his engagement, cannot by retracting the refusal before the day originally agreed upon for the marriage prevent a breach.35 The second offer may be admissible in 31 Ripley v. M'Clure, 4 Ex. 345. 32 Levant American Commercial Co. v. Wells, 186 N. Y. App. D. 467, 174 N. Y. S. 303. Thus tender of performance due under an obligation may be made effectively until the close of the day when performance was due. Supra, § 857. 33 In Borrowman v. Free, 4 Q. B. Div. 500, the plaintiff agreed on May 7th to sell a cargo of maize to be shipped between the fifteenth of May and the thirtieth of June. A cargo was offered which the defendant refused to take on account of its inferiority. The quality was submitted to arbitration, and the defendant was held justified in his refusal. The plaintiff, however, subsequently, but still within the time fixed by the contract, offered the defendant another cargo of proper quality, and the defendant was held liable for refusing to accept it. 34 Hallwood Cash Register Co. v. Lufkin, 179 Mass. 143, 60 N. E. 473; Traver v. Halsted, 23 Wend. 66. 35 Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275; Corduan v. M'Cloud, 87 N. J. L. 143, 93 Atl. 724, L. R. A. 1915 D. 1190; Stacey v. Dolan, 88 Vt. 369, 92 Atl. 453, Ann. Cas. 1917 A. 650. mitigation of damage, 36 though even this is denied when the repudiation of the engagement was made under such circumstances as to make acceptance of a subsequent offer virtually impossible.37 The explanation of these marriage cases may be either that there is a subsidiary obligation between engaged persons which is immediately broken by the first refusal, 38 or that the nature of a contract to marry is such that even though there is no immediate breach, the situation is so changed by the first refusal that the case comes within the principle that a justifiable change of position by the promisee precludes a locus pœnitentiæ. When there has been an actual breach of contract the plaintiff's right of action accrues and cannot be defeated by a subsequent offer to perform.39 § 1296. Anticipatory or prospective breach. Logically, there can be no breach of a promise until the terms or conditions qualifying the promise have been fulfilled. One who contracts to do a certain thing on a certain contingency or at a certain time does not and indeed cannot break that promise unless the contingency happens or the time arrives. Clear as this statement is on principle and though it probably expresses the law in regard to unilateral contracts, the prevalent doctrine in regard to bilateral contracts asserts an exception to it where there is a repudiation of the obligations of a contract by a party to it.40 If the contract was originally bilateral, but the injured party has already performed all that the contract required of him, the situation becomes the same as if the contract were originally unilateral. 41 "McCarty v. Heryford, 125 Fed. 46; Kelly v. Renfro, 9 Ala. 325, 44 Am. Dec. 441; Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275; Kendall . Dunn, 71 W. Va. 262, 76 S. E. 454, 43 L. R. A. (N. S.) 556. Holloway v. Griffith, 32 Ia. 409, 7 Am. Rep. 208; Bennett v. Beam, 42 Mich. 346, 4 N. W. 346, 36 Am. Rep. 442. "See infra, § 1320. L. Ed. 484; Gould v. Banks, 8 Wend, 562, 24 Am. Dec. 90; Emack v. Hughes. 74 Vt. 382, 392, 52 Atl. 1061. 40 It is no exception that in a bilateral contract there may be an entire breach of the contract though the time for all of the defendant's obligation or even of the most important part of it has not yet arrived. See infra, § 1317. 41 See infra, § 106. § 1297. Lord Cockburn's rule in regard to repudiation. But if the injured party to a bilateral contract has not fully performed and there has been no actual violation of promise by the other party (unless words expressing the speaker's intention concerning what he will do in the future can be so considered) yet because of repudiation thus expressed there is reason to believe that the latter will not fulfil his contractual obligation, the situation presents greater difficulty. In Frost v. Knight, 42 Cockburn, C. J., thus stated the law: "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 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 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."43 § 1298. First half of Cockburn's rule approved in England but inconsistent with American decisions. This language was quoted with approval in a later decision44 and may be regarded as expressing the present understanding of English lawyers on the matter in question.45 The alterna 42 L. R. 7 Ex. 111. 43 L. R. 7 Ex. 111, 112. 44 Per Cotton, L. J., in Johnstone v. Milling, 16 Q. B. D. 460. See also Michal v. Hart, [1902] 1 K. 482. 45 See, e. g., Leake, Contracts (4th ed.), 618; Mayne, Damages (7th ed.), 184. It is also quoted and acted on in Dalrymple v. Scott, 19 Ont. App. 477; Cromwell v. Morris, 34 Dom. L. R. 305. tive stated as permissible in the first paragraph of Lord Cockburn's statement is not allowed generally in this country. There is a line of cases running back to 1845 46 which holds that after an absolute repudiation or refusal to perform by one party to a contract, the other party cannot continue to perform and recover damages based on full performance. This rule is only a particular application of the general rule of damages that a Clark v. Marsiglia, 1 Denio, 317, 43 Am. Dec. 670, is the earliest decision. In this case the plaintiff was employed to clean and repair a number of pictures, for which the defendant agreed to pay. After the plaintiff had begun work on them, the defendant countermanded the order. The plaintiff nevertheless completed the work and sued for the full price. The court held he could recover only for what he had done before the order was countermanded, with such further sum as would compensate him for interruption of the contract at that point. To similar effect are Kingman v. Western Mfg. Co., 92 Fed. Rep. 486, 34 C. C. A. 489; King v. Rhodes, 47 D. C. App. 316 (cert. denied, 248 U. S. 560 39 S. Ct. 7); Faulk v. Richardson, 63 Fla. 608, 57 So. 666, 39 L. R. A. (N. S.) 1171, Ann. Cas. 1914 A. 277; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735, 56 S. E. 1030; Listman Mill Co. v. Dufresne, 111 Me. 104, 88 Atl. 354; Black v. Woodrow, 39 Md. 194, 216; Heaver v. Lanahan, 74 Md. 493, 22 Atl. 263; Cumberland Glass Mfg. Co. r. Wheaton, 208 Mass. 425, 94 N. E. 803; Collins v. Delaporte, 115 Mass. 159 (semble); Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Mayo v. Latham, 159 Mich. 136, 123 N. W. 561; Wigent v. Marrs, 130 Mich. 609, 90 N. W. 423; Tradesman Co. v. Superior Mfg. Co., 147 Mich. 702, 111 N. W. 343, 112 N. W. 708; Gibbons v. Bente, 51 Minn. 499, 53 N. W. 756, 22 L. R. A. 80; American Publishing Co. v. Walker, 87 Mo. App. 503; Trinidad Asphalt Mfg. Co. v. Buckstaff Bros. Mfg. Co., 86 Neb. 623, 126 N. W. 293, 136 Am. St. Rep. 710; Backes v. Schlick, 82 Neb. 289, 117 N. W. 707; Dillon v. Anderson, 43 N. Y. 231; Lord v. Thomas, 64 N. Y. 107; Johnson v. Meeker, 96 N. Y. 93, 48 Am. Rep. 609; People v. Aldridge, 83 Hun, 279, 31 N. Y. S. 920; Heiser v. Mears, 120 N. C. 443, 27 S. E. 117; Davis v. Bronson, 2 N. Dak. 300, 50 N. W. 836, 16 L. R. A. 655, 33 Am. St. Rep. 783; Collyer v. Moulton, 9 R. I. 90, 98 Am. Dec. 370; Ault v. Dustin, 100 Tenn. 366, 45 S. W. 981; Chicago, etc., Co. v. Barry (Tenn.), 52 S. W. 451; Tufts v. Lawrence, 77 Tex. 526, 14 S. W. 165; Derby v. Johnson, 21 Vt. 17; Danforth v. Walker, 37 Vt. 239, 40 Vt. 257; Cameron v. White, 74 Wis. 425, 43 N. W. 155, 5 L. R. A. 493; Tufts v. Weinfeld, 88 Wis. 647, 60 N. W. 992; Ward v. American Health Food Co., 119 Wis. 12, 96 N. W. 388; Badger State Lumber Co. v. G. W. Jones Lumber Co., 140 Wis. 73, 121 N. W. 933. But see contra, Roebling's Sons Co. v. Lock Stitch Fence Co., 130 Ill. 660, 22 N. E. 518; McAlister v. Safley, 65 Iowa, 719, 23 N. W. 139 (compare Moline Scale Co. v. Beed, 52 Iowa, 307, 3 N. W. 96, 35 Am. Rep. 272); Martin v. Meles, 179 Mass. 114, 118, 60 N. E. 397. And see Southern Cotton Oil Co. v. Heflin, 99 Fed. 339, 39 C. C. A. 546; Home Pattern Co. v. W. W. Mertz Co., 86 Conn. 494, 86 Atl. 19; Lake Shore, etc., Ry. Co. v. Richards, 152 Ill. 59, 38 N. E. 773, 30 L. R. A. 33. plaintiff cannot hold a defendant liable for damages which need not have been incurred; or, as it is often stated, the plaintiff must, so far as he can without loss to himself, mitigate the damages caused by the defendant's wrongful act. The application of this rule to the matter in question is obvious. If a man engages to have work done, and afterwards repudiates his contract before the work has been begun or when it has been only partially done, it is inflicting damage on the defendant without benefit to the plaintiff to allow the latter to insist on proceeding with the contract. The work may be useless to the defendant, and yet he would be forced to pay the full contract price. On the other hand, the plaintiff is interested only in the profit he will make out of the contract. If he receives this it is equally advantageous for him to use his time otherwise. American decisions not infrequently quote either in terms or in substance Lord Cockburn's rule in its entirety, but it is probable that very few would actually decide that after repudiation the injured party might continue performance where such continuance would cause an enhancement of damages. The inconsistency of Lord Cockburn's rule with the rule of damages in question is often not observed. When it is apparently observed, sometimes in order to meet the difficulty the alternative of the plaintiff is expressed as merely the right after repudiation either to sue immediately or to wait until the time fixed for performance, omitting the statement that in the latter event the plaintiff must continue to treat the contract as binding upon him.47 § 1299. Rule of damages not applicable in every case. The English courts have recognized that a plaintiff who fails to use reasonable means to mitigate or at least not to enhance the damages which a defendant is to be called upon to pay, cannot recover such avoidable damages as he may suffer; 48 47 See Home Pattern Co. v. W. W. Mertz Co., 86 Conn. 494, 86 Atl. 19; Brady v. Oliver, 125 Tenn. 595, 147 S. W. 1135, 41 L. R. A. (N. S.). 60, Ann. Cas. 1913 C. 376; Palestine, etc., Co. v. Connally (Tex. Civ. App.), 148 S. W. 1109. 48 Mayne, Damages (7th ed.), 185; Harries v. Edmonds, 1 C. & K. 686, 687; Roper v. Johnson, L. R. 8 C. P. 167; Roth v. Taysen (C. A.), 12 T. L. R; 211. Brace v. Calder (C. A.), 11895 2 Q. B. 253. Cf. Brown v. Muller, L. R. 7 Ex. 319; Re South |