just mentioned. The courts all agreed that the attempted change of the by-laws involved a repudiation of the terms of the plaintiff's contracts. There, however, the agreement ended. The Massachusetts Court held that the repudiation was not a present breach and that as the doctrine of anticipatory breach was not adopted by the law of Massachusetts, the plaintiff could not recover.71 The New Jersey Court held that the repudiation amounted to an anticipatory breach and in spite of a dictum in an earlier case,72 adverse to giving a right of action on anticipatory repudiation, held the plaintiff entitled to recover.73 The New York Court, though committed by previous judicial statements to the doctrine of anticipatory breach, held that the contract in question was not of such a kind that it could be broken by an anticipatory repudiation.74 In fact it seems clear that there was an actual breach of contract in the cases, and that there was no necessity of discussing anticipatory breach. Though the time for payment of the face of the policies had not arrived, the time for payment of a premium had arrived before the time of suit. That a contract of insurance includes by necessary implication a promise on the part of the insurer to accept premiums at the rate fixed by the original contract seems obvious; and this had indeed been so held by the New York Court of Appeals prior to its adoption of the doctrine of anticipatory breach.75 § 1331. Repudiation may be a defence though it does not amount to a breach. It has been shown 76 that the treatment of anticipatory repudiation as a breach was probably due to a recognition of the necessity of giving the injured party a defence, coupled with the 71 Porte v. Supreme Council American Legion of Honor, 183 Mass. 326, 67 N. E. 238. 72 Parker v. Pettit, 43 N. J. L. 512, 517. 73 O'Neill v. Supreme Council of American Legion of Honor, 70 N. J. L. 410, 57 Atl. 463. To similar effect is Mutual &c. Assoc. v. Taylor, 99 Va. 208, 37 S. E. 854. 74 Langan V. Supreme Council American Legion of Honor, 174 N. Y. 266, 66 N. E. 932. See also Kelly v. Security Mut. L. Ins. Co., 186 N. Y. 16, 78 N. E. 584. 75 Fischer v. Hope Ins. Co., 69 N. Y. 161. See also Lovell v. St. Louis L. Ins. Co., 111 U. S. 264, 28 L. Ed. 423, 4 Sup. Ct. 390. 76 Supra, §§ 1313, 1315. assumption that unless there was a breach there could be no defence. The same confusion tends to induce the supposition that if an anticipatory repudiation is not sufficiently absolute or positive to amount to a breach, it cannot operate as a defence to the other party for not performing. But surely if one who has agreed to buy on credit says to the seller, "I don't think I shall pay for those goods," he cannot sustain an action for refusal to deliver the goods. Any breach seriously threatened without excuse should be a sufficient defence whether there is positive repudiation or not and whether the doctrine of anticipatory breach is accepted or not." On the other hand, it is clear that the law neither does nor ought to allow an immediate action for a repudiation which is not positive or at least where there is not a pretty clear inability to perform. § 1332. Time when repudiation becomes effectual. The prevailing doctrine seems to be that expressed in a leading English case,78 by Lord Bowen "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." If this is true, no right of action can arise until there has been not only repudiation but action upon it. Therefore a New York decision holding that a telegram repudiating a contractual obligation operated as a breach as soon as received for transmission cannot be accepted.79 § 1333. Effect of failing to elect to treat repudiation as a breach under the English rule. Under the rule laid down in the English cases a failure to elect to treat anticipatory repudiation as a breach involves a continuance of the obligations of the contract upon both sides It is this feature of the English doctrine that is most objectionable practically. As has been seen it involves the right to enhance the defendant's damages, and the American cases generally refuse to follow the English law. 80 Another equally unjust consequence of following the English doctrine has not yet so clearly been rejected in the United States. Under the English law if the promisee, after receiving the repudiation, demands or manifests a willingness to receive performance, his rights are lost. Not only can he not thereafter bring an action on the repudiation, but "he keeps the contract alive for the benefit of 81 80 See supra, § 1298. 81 This is involved in the statement of Lord Cockburn, supra, § 1297. See also Dingley v. Oler, 117 U. S. 490, 503, 29 L. Ed. 984, 6 Sup. Ct. 850, quoting from Benjamin on Sale; Zuck v. McClure, 98 Pa. 541; Dalrymple v. Scott, 19 Ont. App. 477; Cromwell v. Morris, 34 Dom. L. R. 305, 307. But see Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 164 N. Y. App. D. 477, 150 N. Y. S. 17, 19. The court there said: "The defendant invokes the rule that, while an anticipatory breach will entitle the party against whom it is made to sue at once for damages without tendering performance, still, in order to do so, he must elect to consider the contract as broken; and he urges that plaintiff's repeated tenders of performance are conclusive evidence that it did not so elect. We do not so understand the rule. It is true that, in order to sue upon an anticipatory breach, the party suing must elect to consider the contract as terminated by the breach; but there is no particular time within which he must make that election, and an offer, or repeated offers, to complete on the contract terms, or on modified terms, unless accepted by the vendee, does not constitute a waiver of the breach. Canda v. Wick, 100 N. Y. 127, 2 N. E. 381; Poel v. Brunswick-Balke Collender Co., 159 App. Div. 365, 144 N. Y. S. 725." Ingraham, P. J., dissenting said: "None of these acts which are now relied upon to sustain the claim of an anticipatory breach by the defendant, was relied upon by the plaintiff, for they afterwards made abortive tenders of the rubber, treated the contract as in full force and effect and never, prior to the time that the amendment was made to the complaint, treated the acts of the defendant prior to the time of the refusal as an absolute and unequivocal breach of the contract. It is settled in this state that, for a party to such a contract to avail himself of such a repudiation, it must be adopted by the other party and acted upon by him. Becker v. Seggie, 139 App. Div. 463, 124 N. Y. S. 116; Ga Nun v. Palmer, 202 N. Y. 483, 96 N. E. 99, 36 L. R. A. (N. S.) 922.” The Court of Appeals (221 N. Y. 127, 116 N. E. 789) reversed the decision of the Appellate Division of the Supreme Court and partly based its conclusion on similar reasoning to that of Ingraham, P. J. On the facts the decision of the upper court seems sound, since the plaintiff not only failed to manifest an election to treat the repudiation as a breach, but also while performance was still possible, itself imposed unwarranted conditions as the only ones on which the other 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." 82 This is a severe penalty imposed upon the injured party for not seizing the right moment. When A repudiates his promise, what is more natural or reasonable than for B to write urging him to perform. Yet if B does so, it seems not only does he lose his right of immediate action, but he is bound to perform his own promise, though he has reason to expect A will not perform his, as a condition of holding the repudiator liable after the time for performance arrives.83 An intermediate case may be supposed where no performance under the contract is due from the injured party until after performance by the repudiator. Here there is no hardship in denying a right of action for the repudiation unless election to treat it as a breach is promptly made; and if the injured party not only fails to make such election but imposes conditions, not warranted by the contract, on his willingness to accept performance from the repudiation he will lose all right to maintain it would perform; but so far as the decision casts discredit on the passage quoted above from the opinion of the majority of the lower court, there is cause for regret. See infra, § 1334. Frost v. Knight, L. R. 7 Ex. 111, 112. Quoted as stating the law in Leake, Contracts (4th ed.), 618. 83 In Avery v. Bowden, 5 E. & B. 714, 728, Campbell, C. J., speaking of remarks made to a ship captain who was acting on behalf of the promisee, said: "The language used by the defendant's agent before the declaration of war can hardly be considered as amounting to a renunciation of the contract; but, if it had been much stronger, we conceive that it could not be considered as constituting a cause of action after the captain still con tinued to insist upon having a cargo in fulfilment of the charter party." In accordance with this rule in Dalrymple v. Scott, 19 Ont. App. 477, the plaintiff lost his case. The defendant had repudiated the contract. The plaintiff did not manifest an election to treat that as an immediate breach, but on the contrary testified that he would have been willing to have accepted performance after the repudiation. When the time for performance had passed he brought an action. Judgment was given for the defendant, because the plaintiff had not performed or offered to perform on his part. See also Reid v. Hoskins, 6 E. & B. 953; Smith v. Georgia &c. Co., 113 Ga. 975, 39 S. E. 410; Shields v. Carson, 102 Ill. App. 38; Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N. Y. 120, 116 N. E. 789. L an action at any time,84 though he should himself also be free from liability.85 § 1334. American decisions opposed to English rule. Most of the American decisions seem indisposed to follow the undesirable lead of the English decisions, holding rather that the repudiation though not taken advantage of as a cause of action is, nevertheless, unless withdrawn, operative as an excuse for the failure of the injured party to perform or to be ready and willing to perform, if in fact the injured party was 84 Landes v. Klopstock, 252 Fed. 89, 164 C. C. A. 201. 85 See the following section. 86 In Tri-Bullion Smelting, etc., Co. v. Jacobsen, 233 Fed. 646, 649, 147 C. C. A. 454, the court said: "Viewed, however, as an anticipatory breach, the action of Jacobsen in writing the letter of July 8, 1913, insisting that Tri-Bullion should carry out his contract, did not, in any manner, cure such anticipatory breach by Tri-Bullion. . . "Where a party to a contract insists that he is not under legal obligation to perform the contract, and that insistence is coupled with a continuance of his original stand and refusal to perform, the breach is plain, and he cannot successfully take refuge in the plea that he must be excused because the other party urges that the contract be carried out." In United Press Assoc. v. National Newspaper Assoc., 237 Fed. 547, 150 C. C. A. 429, the court said: "The refusal of the defendant to perform the contract was without justification or excuse. It now remains to be seen if, under such conditions, the attempt of the plaintiff for about a month to try and get the defendant to perform the contract deprives it of its right to treat the persistent refusal of the defendant to perform it as ending the contract. It is true that the conduct of the plaintiff during the period from February 7 and 11, 1911, to March 10, 1911, kept the contract open for both parties. The defendant could have withdrawn its renunciation, either by an express declaration or by acts inconsistent therewith. It, however, said nothing, and the evidence shows that it was its intention to do nothing, towards continuing the contract. It is true that the plaintiff continued to furnish the service, but the defendant refused to pay for the same, which was the substantial consideration for the contract on the part of the plaintiff. We are of the opinion that on March 13, 1911, it was open to the plaintiff to treat the contract as ended on account of the refusal to substantially perform the same by the defendant." In Zuck v. McClure, 98 Pa. 541, the court said of a repudiation, that "If not in fact withdrawn it is evidence of a continued intention to refuse performance down to and inclusive of the time appointed for performance." See also Consumers' Bread Co. v. Stafford County Flour Mills Co., 239 Fed. 693, 152 C. C. A. 527; Rederiaktiebolaget Amie v. Universal Transp. Co., 250 Fed. 400, 162 C. C. A. 470; Progressive Smelting & Metal Corp. v. Ansonia Foundry Co., (Conn. 1918), 105 Atl. 322; Louisville Packing Co. v. Crain, 141 Ky. 379, 132 S. W. 575, 579; Buick Motor Co. v. Reid Mfg. Co., 150 Mich. 118, 113 N. W. 591; Hadfield v. Colter, 103 N. Y. Misc. 474, 170 N. Y. S. 643; Mutual &c. Assoc. v. Taylor, |