the buyer can have but a single remedy for breach of warranty.70

In any other kind of bargain than that of a sale of goods by description, there seems even less possibility of question that rescission when rightfully exercised is an exclusive remedy and that the injured party who rescinds can claim nothing beyond restitution.

§ 1465. Where no performance has been rendered.

While it is ordinarily the case that a party who seeks to rescind or avoid a contract because of a breach of contract or repudiation by the other party has performed at least in part and desires restitution of what he has given or its value, yet it seems to follow that the same course is open to one who has not performed at all. Such a person will not wish ordinarily to avoid the contract altogether, because that course would deprive him of any right of action whatever. He could seek neither restitution, because he had given nothing, nor compensation in damages for breach of the contract, because he had put an end to the promise on which he must sue. Nevertheless, there are many cases where the injured party is content merely to terminate his legal relations with the other party to the contract without more. That he may do this is perhaps intimated by Parke, B., in Phillpotts v. Evans; 71 it is expressly stated by Crompton, J., in Hochster v. De La Tour,72 where the repudiation preceded the time for performance by either party. It was so decided in King v. Faist.73 There the plaintiff had stated he would not perform unless the defendant gave a guarantee which the contract did not require; whereupon the defendants wrote that they would not perform, and they did not. The

978; Edge Moor Iron Co. v. Brown &c. Co., 6 Pennew. (Del.) 10, 13, 4 L. R. A. (N. S.) 858; Britton v. Turner, 6 N. H. 481, 495, 26 Am. Dec. 713; Fabbricotti v. Launitz, 3 Sandf. (N. Y.) 743.

70 Impervious Products Co. v. Gray, 127 Md. 64, 96 Atl. 1; Gerli v. Mistletoe Silk Mills, 80 N. J. L. 128, 76 Atl. 335; Regina Co. v. Gately Furniture Co., 154 N. Y. S. 888, 171 App. Div. 817, 157 N. Y. S. 746;

Kaufman v. Levy, 102 N. Y. Misc. 689, 169 N. Y. S. 454.

715 M. & W. 475, 477. See also Grimaldi'v. White, 4 Esp. 95.

722 E. & B. 678, 685. "When a party announces his intention not to fulfil the contract, the other side may take him at his word and rescind the contract."

73 161 Mass. 449, 37 N. E. 456.

plaintiff sued for this failure to perform, but the court held it justified, saying: "Before the defendants were in default under the substituted contract, or had notified him of an intention not to perform it, he himself repudiated it by notifying them that he would not perform it on his part, and thus gave them the right to rescind the contract." 74 Indeed, the numerous cases on anticipatory breach largely base their arguments on the premise that an anticipatory repudiation is an offer to rescind.75 Though this mode of statement is open to objection,76 and when coupled with the statement that the offer includes as part of the proposition that the offeror shall be immediately liable to an action for damages becomes an almost grotesque fiction, the cases on repudiation at least tend to show that the injured party has a right of rescission, whether acquired by mutual assent or (as is the truth) given by the law to the injured party, regardless of the assent of the other. This right may become of great importance if the contract while it exists operates as a threatened liability or a cloud on title. Thus if a contract for the sale of real estate is recorded, the owner has no longer a salable title, and if the purchaser fails to carry out his agreement, the owner, to regain a clear title to his land, will desire the rescission of the contract. In order that there may be recorded evidence of this a court of equity will decree the rescission and cancellation of such a contract." So one who has given negotiable paper in return for a promise which has been broken is entitled to proceed affirmatively for the rescission of the contract and the surrender of the negotiable paper, lest it should be negotiated by the holder to a bona fide purchaser for value without notice, to whom the maker would be liable.78 And whereever necessary in order to do justice between the parties the aid of a court of equity may be invoked to decree rescission."9

74 Ib. at p. 457. See also Howe v. Smith, 27 Ch. D. 89, 105; Munsey v. Butterfield, 133 Mass. 492; Warters v. Herring, 2 Jones L. (N. C.), 46. 75 See supra, §§ 1297 et seq. 78 See supra, § 1302.

77 Howe v. Hutchison, 105 Ill. 501; Nelson v. Hanson, 45 Minn. 543, 48 N. W. 410; Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677.

78 See Randolph on Commercial Paper (2d ed.), §§ 1686, 1687; Camp bell Printing Press Co. v. Marsh, 20 Col. 22, 36 Pac. 799; Duggar v. Dempsey, 13 Wash. 396, 43 Pac. 357.

79 Neenan v. Otis Elevator Co., 194 Fed. 414, 114 C. C. A. 376; Crowe v. Oscar Barnett Foundry Co., 213 Fed. 864, 219 Fed. 450, 135 C. C. A. 162.

§ 1466. Repudiation without breach sufficient.

There seems to be no doubt that repudiation without any actual failure to perform the contract is enough to give rise to the right. This point is covered by the remark of Crompton, J., just referred to. So, in a Massachusetts case,80 the court say: "Such a repudiation did more than excuse the plaintiff from completing a tender; it authorized him to treat the contract as rescinded and at an end. It had this effect, even if, for want of a tender, the time for performance on the defendants' part had not come, and therefore it did not amount to breach of covenant." And again, "It is clear that, apart from technical considerations, so far as the right to rescind goes, notice that a party will not perform his contract has the same effect as a breach." 81

§ 1467. Breach without repudiation sufficient.

Question is more likely to be made whether breach of contract without repudiation justifies rescission than whether repudiation without actual breach is sufficient. There are many expressions, chiefly in English cases, which seem to mean that repudiation or abandonment of the contract is essential to give rise to the right of rescission. Thus, in Ehrensperger v. Anderson, Parke, B., said, "In order to constitute a title to recover for money had and received, the contract on the one side must not only not be performed or neglected to be performed, but there must have been something equivalent to saying 'I rescind this contract,' . . a total refusal to perform it, or something equivalent to that, which would enable the plaintiff on his side to say, 'If you rescind the contract on your part, I will rescind it on mine."" 82 In accordance with this doctrine it was

So Ballou v. Billings, 136 Mass. 307, 308.

81 P. 309. See also Drake v. Goree, 22 Ala. 409; Cabrera v. Payne, 10 Cal. App. 675, 103 Pac. 176; Smith v. Jaccard, 20 Cal. App. 280, 128 Pac. 1023; Ryan v. Dayton, 25 Conn. 188, 65 Am. Dec. 560; Elder v. Chapman, 176 Ill. 142, 52 N. E. 10; Festing v. Hunt, 6 Manitoba, 381. But where a contract of service was terminated by

the plaintiff's illness before compensation became due under the contract, the court refused to allow recovery on a quantum meruit at an earlier day than that on which the contract required payment. Tebo v. Ballard, 36 Vt. 612.

82 3 Ex. 148, 158. This is quoted in Keener on Quasi-Contracts, 304, as a correct exposition of the law. Similar expressions may be found in Fay v.

held that failure by the defendant to remit a bill of exchange did not permit the plaintiff to treat the contract as rescinded and sue in money had and received for restitution of what the defendant had received. In another case 83 the court, and particularly Lord Coleridge, laid stress on the question whether the breach of contract amounted to an "abandonment of the contract or a refusal to perform it on the part of the person so making default; " and in Mersey Steel and Iron Co. v. Naylor, the Earl of Selborne, citing Lord Coleridge's statement, expressed the same view even more explicitly.84 This doctrine,

86

8 See supra, § 865.

though perhaps it is that of the English law to-day, 85 both as to the right of the injured party to rescind and his closely connected but different right to refuse further performance himself and nevertheless hold the other party liable on the contract, must be regarded as erroneous in principle and unfortunate in practice. It seems to be based in large part on the notion that, in order to justify a rescission of the contract, mutual assent of the parties must be established an offer by the party in default accepted by the other party.87 In almost any case this can be established only by resorting to the baldest fiction.88 As matter of theory a man who repudiates a contract no more than one who negligently breaks it offers to rescind it, and if he did, his offer could only be construed as expressing a willingness to drop matters as they stood at the time, not with followed in Hill v. Blake, 97 N. Y. 216. See also Mansfield v. New York Central R. R. Co., 102 N. Y. 205, 6 N. E. 386. 85 See in addition to the cases cited in the previous note, Cornwall v. Henson, L. R. [1900] 2 Ch. 298; Rhymney Ry. Co. v. Brecon, etc., Ry. Co., 83 L. T. 111; In re Phoenix, etc., Co., 4 Ch. D. 108; Bloomer v. Bernstein, L. R. 9 C. P. 588. There are strong expressions to the same effect in Colonial decisions. In Bradley v. Bertoumieux, 17 Victorian L. R. 144, 147, it is said: “A contract broken is not a contract rescinded, and unless one of the parties to the contract clearly intimates his intention not to perform his contract, or his inability to perform it, the other party is not at liberty to rescind the contract." So in Oaten v. Stanley, 19 Victorian L. R. 553, 555. "The point is whether the person who committed the breach meant to abandon the contract." And see, to similar effect, Prendergast v. Lee, 6 Victorian L. R. (Law) 411; Hacker v. Australian, etc., Co., 17 Victorian L. R. 376; Moroney v. Roughan, 29 Vict. L. R. 541; Midland Ry. Co. v. Ontario Rolling Mills, 10 Ont. App. 677. See, however, Muston v. Blake, 11 S. C. New South Wales, 92.

87 Thus, Coleridge, J., in Franklin v. Miller, 4 A. & E. 599, says: "The rule is that, in rescinding, as in making a contract, both parties must concur," and, "therefore, the refusal which is to authorize the rescission of the contract must be an unqualified one." See also the reasoning of Lord Esher in Johnstone v. Milling, 16 Q. B. D. 460, 467. And in an American case it is said: "Where one of the contracting parties absolutely refuses to perform, such refusal. . . will be regarded as equivalent to a consent on his part to a rescission of the contract, and the other contracting party may, if he choose, so treat it, rescind the contract, and if he have done anything under it, may immediately sue for compensation on a quantum meruit." Shaffner v. Killian, 7 Ill. App. 620. So in Cromwell v. Wilkinson, 18 Ind. 365, 370; Stevens v. Cushing, 1 N. H. 17, 18, 8 Am. Dec. 27; Dow v. Harkin, 67 N. H. 383, 29 Atl. 846, and other cases.

88 The preceding three sentences, originally published in 14 Harv. L. Rev. 318, are quoted with approval in Raftery v. World Film Corp., 180 N. Y. App. D. 477, 479, 167 N. Y. S. 1027.