Choke's idea seems to have been that when the obligor of the bond sold the property, the condition became at that moment impossible of performance. There was, therefore, at that moment, by virtue of the bond itself, an absolute indebtedness, and this indebtedness, having once become absolute, could not subsequently be qualified. The condition could not be temporarily in abeyance.

§ 1310. Explanation of case continued.

Whether this view of the law was that generally taken by the contemporary judges, and, if so, when it gave way to a more modern conception, is not very material to this discussion, but it may be mentioned that Choke's statement seems inconsistent with the opinions of writers of authority not long afterwards.83 What is material to observe is that, whichever way the point is decided, these authorities have no bearing upon the question of the immediate right to sue upon the repudation of a contract. It may safely be asserted that Choke and his contemporaries and successors would all have agreed that a covenant to convey land before a certain feast, or a covenant to pay damages if the covenantor failed to convey

83 a; Perkins, Profitable Book, §§ 736, 757; 1 Rolle's Ab. 419 (C) pl. 2; Ib. 420 (E) pl. 1, 2. The last passage reads: "If the condition of a bond or feoffment is impossible when it is made it is a void condition, but the obligation or feoffment is not void but single, because the condition is subsequent. But if a condition precedent be impossible when it is made the whole is void, for nothing passes before the condition is performed." Perkins (757) gives a case of a condition originally possible, but subsequently becoming impossible.

* Perkins, Profitable Book, § 800: "And there is a diversity when the condition is to be performed on the part of the feoffor or grantor, etc., and when on the part of the feoffee or grantee, etc. For when it is to be per

formed on the part of the feoffee or grantee, it behoveth him that he be not disabled at any time to do or perform the same."

§ 801. "But when the condition is to be performed on the part of the feoffor or grantor, although they are disabled to perform it at any time before the day on which it ought to be performed, yet if they are able to perform the same at the day, etc., it is sufficient, except in special cases." Illustrations are also given by the author.

This was written in the first half of the sixteenth century. Coke adopted the diversity (Co. Litt. 221 b); but neither author gives a satisfactory reason for it.

In the case put by Choke the condition was to be performed by the obligor, grantor of the bond.

land before a certain feast, could in no event have been sued upon before the feast.84

§ 1311. Erroneous statement of Fuller, C. J.

When, therefore, Fuller, C. J., of the Supreme Court of the United States, in the leading American decision on the point asserted, "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,"85 it must, with deference be said that the learned judge was mistaken. The mistake is perhaps more pardonable than it would otherwise be, had not an English court fallen into the same error. In Ford v. Tiley,86 Bayley, J., in delivering the opinion of the court, draws the conclusion from some of the old authorities above referred to "that where a party has disabled himself from making an estate he has stipulated to make at a future day, by making an inconsistent conveyance of that estate, he is considered as guilty of a breach of his stipulation, and is liable to be sued before such day arrives." 87 This was not, so far as appears, necessary to the decision of the case. The decision seems to have been correct, as will presently be

84 This is neatly proved by an extract from the case of Hoe v. Marshall, Cro. Eliz. 579, 580, S. C. Goldsb. 167, 168. The reader should first be reminded that in our early law a release of a claim or debt was treated as a conveyance and that consequently a release could not be made of a possible future claim (see infra, § 1823), and further that the word "obligation" here as always in the early books means a bond with condition. "If one covenants to infeoff me before Michaelmas, a release of all actions before Michaelmas is no bar to an action of covenant brought after Michaelmas, for there was not any cause of action at the time of the release made. But if an obligation be for the performance of that covenant, a release of all actions is a discharge of that bond, for it was a

duty defeasible." That is, the bond created an immediate liability as soon as it was made, and the condition operated as a defeasance.

85 Roehm v. Horst, 178 U. S. 1, 18 44 L. Ed. 953, 20 Sup. Ct. 780. It is also stated in the opinion (p. 8) that this was "not disputed." If so, the counsel for the defendant conceded more than they should.

866 B. & C. 325 (1827). But the error is pointed out, though perhaps not conclusively shown, in the able opinion of Wells, J., in Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384. It is also adverted to in the argument of counsel for the defendant in Short v. Stone, 8 Q. B. 358, 364, and in Lovelock v. Franklyn, 8 Q. B. 371, 376.

876 B. & C. 325, 327.

shown, but Bayley's remark is noteworthy as the first statement in the English books authorizing the idea that an action may be brought on a promise before it is broken. It is to be noticed that this remark is confined to the case of an estate, and is not made as laying down a general principle of the law of contracts. 88

Where the owner of specific property agrees to sell it at a future day, it is certainly much easier to imply a promise that he will not otherwise dispose of it in the meantime, than it is to imply a promise in every contract not only to do but to say nothing inconsistent with the principal promise. But would a court, it may be asked, grant specific performance on January 1, of a contract to convey Blackacre the following July, on the ground that the defendant had been guilty of an anticipatory repudiation on the earlier day? 89 If such repudiation is an actual breach justifying an action at law, there seems no reason why a suit in equity should not be maintainable. Certainly no decree would require performance before July 1, and it would at least be made clear that repudiation does not accelerate the obligations of a contract.

§ 1312. Other English cases.

In 1846 there were decided two cases in which a defendant was held liable for the breach of a promise to marry. In one of these cases 90 the defendant's promise was alleged to be simply to marry the plaintiff; in the other case "to marry her within a reasonable time next after he should thereunto be requested." 91 In both cases the defendant was held liable without any request by the plaintiff.

These cases did not profess to establish any general doctrine that a contract could be broken before the time for its performance. Moreover, Parke, B., twice expressly ruled the con

"Bayley's remark was repeated as representing the law in Heard v. Bowers, 23 Pick. 455, 460; but in that case, as the impossibility was not due to the voluntary act of the promisor, the rule was held inapplicable. In Daniels ". Newton, 114 Mass. 530, 19 Am. Rep. 384, the dictum in Heard v. Bowers, was repudiated.

89 See Duvale v. Duvale, 54 N. J. Eq. 581, 590, 35 Atl. 750, 56 N. J. Eq. 375, 39 Atl. 687, 40 Atl. 440, and infra, § 1421, in regard to repudiated contracts to devise or bequeath property.

90 Caines v. Smith, 15 M. & W. 189.

91 Short v. Stone, 8 Q. B. 358.

trary at about this time; 92 and Lord Denman expressed a similar opinion.93

§ 1313. Hochster v. De La Tour.

So the matter stood in 1852 when the case of Hochster v. De La Tour 94 was decided. In that case the plaintiff had entered into a contract with the defendant to serve him as a courier for three months beginning June 1, 1852. On May 11, the defendant wrote to the plaintiff declining his services. The action was begun May 22, and, after a verdict for the plaintiff, objection was taken that the action was prematurely brought. Counsel for the defendant, however, argued unnecessarily so far as the immediate case was concerned that the plaintiff, having taken other employment, had terminated the contract. Lord Campbell, in delivering the opinion of the court in favor of the plaintiff, showed that the situation would be unfortunate if the plaintiff, as a condition of getting a right of action, must

92 Phillpottts v. Evans, 5 M. & W. 475, 477 (1839): "I think no action would then have lain for the breach of the contract, but that the plaintiffs were bound to wait until the time arrived for delivery of the wheat, to see whether the defendant would then receive it. The defendant might then have chosen to take it, and would have been guilty of no breach of contract, for all that he stipulates for is that he will be ready and willing to receive the goods, and pay for them, at the time when by the contract he ought to do so. His contract was not broken by his previous declaration that he would not accept them; it was a mere nullity, and it was perfectly in his power to accept them, nevertheless; and, vice versa, the plaintiffs could not sue him before.”

In Ripley v. M'Clure, 4 Ex. 345 (1849), Parke reiterated his statement that a notice before the time for performance could not be a breach of contract, but held that it might excuse the other party from continuing to perform.

93 Lovelock v. Franklyn, 8 Q. B. 371, 378 (1846): "This distinction shows that the passage cited from Lord Cokeis inapplicable. That proves no more on the point now before us than that, if an act is to be performed at a future time specified, the contract is not broken by something which may merely prevent the performance in the meantime." Lord Denman had immediately before taken part in the decision of Short v. Stone, 8 Q. B. 358, it may be assumed he did not regard that decision as inconsistent with his later remarks.

As

In Thomson v. Miles, 1 Esp. 184, Lord Kenyon had said that it had been solemnly adjudged that if a party sells an estate without having title, but before he is called upon to make a conveyance, by a private act of Parliament, gets such an estate as will enable him to make a title, that is sufficient.

See also Alexander v. Gardner, 1 Bing. N. C. 671, 677, per Tindal, C. J. 94 2 E. & B. 678.

2363 decline other employment and hold himself ready to perform until June 1. From this, apparently misled by the argument of counsel, Lord Campbell drew the conclusion that the plaintiff must have an immediate right of action; and also drew the conclusion from the earlier cases already referred to 95 that incapacity before the time for performance had already been settled by decision to be a breach, neglecting to notice the distinction, hereafter adverted to,96 between a promise to perform on a fixed future day and on a day which the injured party has a right to fix at any time in the present or future.

§ 1314. Modern law.

These two misapprehensions of Lord Campbell, for as such they must be regarded, make the case an unsatisfactory one. It has, however, settled the law in England,97 and the doctrine for which it stands has been adopted in Canada,98 and in the United States, either by dictum or decision, both in the Federal courts 99

He adds the case of Bowdell v. Parsons, 10 East, 359, as establishing the proposition that "if a man contracts to sell and deliver specific goods on a future day, and before the day he sells and delivers them to another, he is immediately liable to an action at the suit of the person with whom he first contracted to sell and deliver them." In fact, the contract in that case was to deliver upon request.

* Infra, § 1319.

Frost v. Knight, L. R. 7 Ex. 111; Johnstone v. Milling, 16 Q. B. D. 460; Synge v. Synge (C. A.), [1894] 1 Q. B. 466; Roth v. Taysen, 73 L. T. 628. See also Danube, etc., Co. v. Xenos, 13 C. B. (N. S.) 825; Avery v. Bowden, 5 E. & B. 714; Reid v. Hoskins, 6 E. & B. 953; Roper v. Johnson, L. R. 8 C. P. 167; Brown v. Muller, L. R. 7 Ex. 319; Re South African Trust Co., 74 L. T. 769.

"Dalrymple v. Scott, 19 Ont. App. 477, 483; Ontario Lantern Co. v. Hamilton Mfg. Co., 27 Ont. App. 346;

Cromwell v. Morris, 34 Dom. L. R. 305; Gilbert v. Campbell, 1 Hannay (N. Brunswick), 474.

99 Rohm v. Horst, 178 U. S. 1, 44 L. Ed. 953, 20 Sup. Ct. 780, affirming 84 Fed. 565; Central Trust Co. v. Chicago Auditorium Assoc., 240 U. S. 581, 60 L. Ed. 811, 36 Sup. Ct. 412; Ex parte Pollard, 2 Lowell, 411; Grau v. McVicker, 8 Bliss. 13; Dingley v. Oler, 11 Fed. 372; Foss, etc., Co. v. Bullock, 59 Fed. 83, 87, 8 C. C. A. 14; Marks v. Van Eeghen, 85 Fed. 853, 30 C. C. A. 208, Equitable Trust Co. v. Western Pac. R., 244 Fed. 485.

Clark v. National Benefit Co., 67 Fed. 222, must be regarded as overruled. The Supreme Court long remained apparently undecided. Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 264, 30 L. Ed. 920, 7 Sup. Ct. Rep. 882; Pierce v. Tennessee &c. R. Co., 173 U. S. 1, 12, 43 L. Ed591, 19 Sup. Ct. 335. See also Ed. ward Hines Lumber Co. v. Alley, 73 Fed. 603, 19 C. C. A. 599.