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§ 1318. Action may be based on breach of subsidiary promise. Under this principle a right of action may accrue by breach of a subsidiary promise, long before the defendant's main performance is due, and the subsidiary promise may be an implied one. In any case where the plaintiff's performance requires the coöperation of the defendant, as in a contract to serve or to make something from the defendant's materials or on his land, the defendant, by necessary implication, promises to give this coöperation12 and if he fails to do so he is immediately liable though his only express promise is to pay money at a future day. 13 So in a contract of life insurance a promise on the part of the company to accept the premiums is clearly implied in fact and a refusal to receive premiums is an immediate breach of contract.14 Indeed, it seems that there is generally in a conditional contract an implied promise not to prevent performance of the condition. 15 Such prevention would

city from the breach, in so far as the
future was concerned, would be beset
with difficulties. Those difficulties
are the same in kind and no greater in
degree than are frequently encountered
in actions for personal injuries. Pierce
v. Tennessee, etc., R. Co., 173 U. S. 1,
16, 19 Sup. Ct. 335, 43 L. Ed. 591;
In re Stern, 116 Fed. 604, 607, 54
C. C. A. 60; East Tenn., etc., R. Co.
v. Staub, 7 Lea (Tenn.), 397, 406.
Uncertainties that may arise from an
inability to forecast correctly what the
future has in store for a plaintiff whose
rights have been invaded by a breach
of contract or a tort do not suffice to
convert his right of action into a con-
tingent one or to bar him from recovery
as of a matured and accrued claim."
12 See supra, § 1293.

13 Lovell v. St. Louis Mut. L. Ins. Co., 111 U. S. 264, 274, 4 Sup. Ct. 390, 28 L. Ed. 423; Edwards v. Slate, 184 Mass. 317, 68 N. E. 342. See also supra, § 1293; infra, § 1361; Inchbald v. Western, etc., Co., 17 C. B. (N. S.).

Ford v. Tiley, 6 B. & C. 325, was clearly correctly decided under this principle. The defendant promised to

make a lease to the plaintiff as soon as he should become possessed of the property, which was then under lease to a third party. The defendant before the expiration of the prior lease executed another to the same lessee, thereby preventing possession reverting to him at the expiration of the previous lease.

14 O'Neill v. Supreme Council, A. L. of H., 70 N. J. L. 410, 57 Atl. 463; Fischer v. Hope Ins. Co., 69 N. Y. 161. The contrary decisions of Porter v. American Legion, 183 Mass. 326, 67 N. E. 238, and Langan v. Supreme Council, 174 N. Y. 266, 66 N. E. 932, must be deemed erroneous.

15 United States v. Peck, 102 U. S. 64, 26 L. Ed. 46; Peck v. United States, ibid.; Lovell v. St. Louis Mut. L. Ins. Co., 111 U. S. 264, 274, 4 Sup. Ct. 390, 28 L. Ed. 423; Knotts v. Clark Const. Co., 249 Fed. 181, 161 C. C. A. 217; Danforth v. Tennessee &c. R., 93 Ala. 614, 11 So. 60; Gay v. Blanchard, 32 La. Ann. 497; McFarland v. Welch, 48 Mont. 196, 136 Pac. 394; Patterson v. Meyherhofer, 204 N. Y. 96, 97 N. E. 472; Cameron-Hawn Co. v. Albany,

then be an immediate breach of contract, and if of sufficiently serious character damages for the loss of the entire contract might be recovered. As countermanding work may have the legal effect of prevention in this country, 16 though it does not involve actual physical prevention, it would be a breach of contract on this theory at the time when a stoppage in the performance of the contract had been caused thereby.17 It may be argued that the principle of implied subsidiary promises explains satisfactorily the doctrine of anticipatory breach, and the argument has been stated by courts of the highest authority.18 In spite of the somewhat strained character of such an implication, the explanation would be acceptable, if it did not require such an implication to be made in all contracts-unilateral and absolute as well as bilateral and conditional. 19

§ 1319. Time of performance fixed by act of the promisee.

The time for the defendant's performance is frequently fixed in a contract, not by naming a definite day, but by some act to be done by the plaintiff either a counter-performance or a request. If the defendant repudiates the contract, it excuses the plaintiff from doing a nugatory act, and, as in the case of any other condition which the defendant's conduct excuses, he cannot take advantage of its non-performance. 20 He is deprived

207 N. Y. 377, 101 N. E. 162, 49 L. R. A. (N. S.) 922; Millan v. Bartlett, 69 W. Va. 155, 71 S. E. 13.

In United States v. Behan, 110 U. S. 338, 346, 28 L. Ed. 168, 4 Sup. Ct. 81, the court said: "The wilful and wrongful putting an end to a contract, and preventing the other party from carrying it out, is itself a breach of the contract for which an action will lie for the recovery of all damage which the injured party has sustained." It should be noted that this statement was made before the Supreme Court had accepted the doctrine of anticipatory breach. See also Indian Contract Act, § 53, and supra, § 677. But see Murdock v. Caldwell, 10 Allen, 299.

16 See supra, § 1298. See also Cort

v. Ambergate, etc., Ry. Co., 17 Q. B. 127, 145.

17 Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Chapman v. Kansas City, etc., Ry. Co., 146 Mo. 481, 48 S. W. 646.

18 See infra, § 1328.

19 Ibid. This is recognized and the conclusion cheerfully accepted by L. Hand, J., in Equitable Trust Co. v. Western Pac. R., 244 Fed. 485, 501 (aff'd. 250 Fed. 327, 162 C. C. A. 397, 246 U. S. 672, 62 L. Ed. 932, 38 S. Ct. Rep. 423); but it may be doubted whether most courts would go so far. See infra, § 1328.

20 The leading case for this wellsettled doctrine is Cort v. Ambergate, etc., Ry. Co., 17 Q. B. 127. A few of

of nothing thereby, except what he has indicated a willingness to go without, for he has said that even if the request be made he will not heed it, or if the counter-performance be offered he will not accept it. The case is very different where the defendant promises to pay on a fixed day, or when an outside event happens. To hold him immediately liable on such a contract is to enlarge the scope of his promise, and entirely without his assent. If he prevented the time for his performance from coming, his assent might be dispensed with, but not otherwise.21 The English cases before Hochster v. De La Tour, 22 which are cited in support of the doctrine of anticipatory breach,23 may be satisfactorily explained on these principles with possibly one exception.24

the many other cases which might be cited are: Hinckley v. Pittsburg Steel Co., 121 U. S. 264, 7 Sup. Ct. 875, 30 L. Ed. 967; Dwyer v. Tulane, etc., Adm's, 47 La. Ann. 1232, 17 So. 796; Brackett v. Knowlton, 109 Me. 43, 82 Atl. 436; Murray v. Mayo, 157 Mass. 248, 31 N. E. 1063; Canda v. Wick, 100 N. Y. 127, 2 N. E. 381.

The distinction here contended for is well brought out in Lowe v. Harwood, 139 Mass. 133, 29 N. E. 538. In that case there was a contract for an exchange of real estate. No time was fixed for performance. Before any tender or demand for performance the defendant repudiated the contract. Holmes, J., in delivering the opinion of the court, held that this "not only excused the plaintiff from making any tender and authorized him to rescind if he chose, but amounted to a breach of the contract. contract was for immediate exchange, allowing a reasonable time for necessary preparations. In the absence of special circumstances, which do not appear, sufficient time had been allowed, even if any consideration of that sort could not be and was not waived by the defendant. The case is not affected by Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384, but

The

falls within principles that have been often recognized."

21 In Ford v. Tiley, 6 B. & C. 325, the time for performance was to be fixed by the defendant's coming into possession of certain property-an event depending on outside contingencies, which the defendant prevented from happening as expected. In the nature of the case, however, a party cannot prevent a day fixed by reference to the calendar from arriving. 22 2 E. & B. 678.

23 Bowdell v. Parsons, 10 East, 359; Ford v. Tiley, 6 B. & C. 325; Caines v. Smith, 15 M. & W. 189. In Bowdell v. Parsons and Caines v. Smith the defendant promised to perform upon request, and later by making his own performance impossible excused the request. As to Ford v. Tiley, see n. 21. So in Clements v. Moore, 11 Ala. 35-a decision before the days when anticipatory breaches were talked of the defendant was held liable without a request, on his marriage with another than the plaintiff, for breach of a promise to marry on request.

24 Short v. Stone, 8 Q. B. 358. The promise was to perform within a reasonable time after request. The defendant, by making his own performance

§ 1320. Contracts to marry.

A great many of the cases cited in support of the doctrine of anticipatory breach are upon contracts to marry; 25 and these cases may well be distinguished. Lord Cockburn said in Frost v. Knight: "On such a contract being entered into . . . a new status, that of betrothment, at once arises between the parties." When a man promises to pay money or deliver goods at a future day, all he understands, all a reasonable man could understand, is that he will be ready to perform on the day. When a man promises to marry, his obligation, as he understands it and as it is understood, is wider, and includes some undertaking as to conduct before the marriage-day. If this be so, marriage with another than the betrothed is an immediate breach, not directly of the promise to marry, but of the subsidiary obligation implied from it. As this breach necessarily involves a loss of the marriage, full damages could be recovered. Lord Cockburn tries to apply the same line of reasoning to other contracts, saying," The promisee has an inchoate right to the performance of the bargain, which becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may

impossible, clearly dispensed with the necessity of a request as such. It does not seem so clear why he should forego the "reasonable time." Coleridge, J., avoided the difficulty by a strained construction of the declaration, holding the promise to mean after request made within a reasonable time. The other members of the court simply say the request is dispensed with.

25 Frost v. Knight, L. R. 7 Ex. 111; Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275; Adams v. Byerly, 123 Ind. 368; Holloway v. Griffith, 32 Ia. 409, 7 Am. Rep. 208; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; Sheahan v. Barry, 27 Mich. 217; Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 81 Am.

St. Rep. 302; Burtis v. Thompson, 42 N. Y. 246, 1 Am. Rep. 516; Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L. R. A. 660, 78 Am. St. Rep. 914; Burke v. Shaver, 92 Va. 345, 23 S. E. 749. The distinction here suggested was referred to in Stanford v. McGill, 6 N. Dak. 536, 72 N. W. 938, 38 L. R. A. 760, and in Lewis v. Tapman, 90 Md. 294, 308, 45 Atl. 459, 47 L. R. A. 385; the court said: "There is no occasion to adopt and we do not adopt Hochster v. De La Tour further than it applies under Frost v. Knight to an action for breach of promise to marry." See also Swiger v. Hayman, 56 W. Va. 123, 48 S. E. 839, 107 Am. St. Rep. 899.

26 L. R. 7 Ex. 111, 115.

be essential to his interests." 27 But this is fanciful. If true the action should be brought for breach of a promise to have the contract kept open. If there is such an implied obligation in any case there should be in case of negotiable paper, for in no other case is it more important that the promise should not be discredited before the time for performance. Yet it may be doubted if any court would apply the doctrine to bills and notes. 28

§ 1321. Practical convenience.

The reason most strongly urged in support of the doctrine of anticipatory breach is, however, its practical convenience. It is said that if it is certain that the plaintiff is going to have an action, it is better for both parties to have it disposed of at once. It may be conceded that practical convenience is of more importance than logical exactness, but yet the considerations of practical convenience must be very weighty to justify infringing the underlying principles of the law of contracts. The law is not important solely or even chiefly for the just disposal of the litigated cases immediately before the court. The settlement of the rights of a community without recourse to the courts can only be satisfactorily arranged when logic is respected. But it is not logic alone which is injured. The defendant is injured. He is held liable on a promise he never made. He has only promised to do something at a future day. He is held to have broken his contract by doing something before that day. En

L. R. 7 Ex. 112, 114.

* Benecke v. Hæbler, 38 N. Y. App. Div. 344, 58 N. Y. S. 16, affirmed without opinion in 166 N. Y. 631, 60 N. E. 1107. See also Honour v. Equitable Soc., [1900] 1 Ch. 852; Greenway v. Gaither, Taney, 227; Flinn v. Mowry, 131 Cal. 481, 63 Pac. 724, 1006.

In Rohm v. Horst, 178 U. S. 1, 7, 44 L. Ed. 953, 20 Sup. Ct. 780, Chief Justice Fuller distinguishes the case of a note on the ground that the doctrine of anticipatory breach only applies to contracts where there are mutual obligations. This has not

before been suggested, though in fact the cases where the doctrine has been applied have been cases of bilateral contracts. Lord Cockburn's line of reasoning is certainly as applicable to unilateral as to bilateral contracts. It would be interesting to know what Chief Justice Fuller would say to the case of a promissory note given in exchange for an executory promise, or of an instrument containing mutual covenants, one of which was to pay money on a fixed day, the party bound to the money payment having repudiated his obligation before it was due.

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