for the law will imply concurrent conditions wherever possible.

But where a lump sum is mentioned and no time is fixed, the payment and last instalment would be concurrent. All of the preceding instalments would be independent. If the seller of a piece of property waits until all instalments are due, he must tender the deed to the buyer, because then it is possible to make the conditions concurrent. At any time, however, up to the time when the third payment is due, he can sue for the second instalment without tendering the deed.

The general American rule excuses further performance of a divisible contract where the breach has gone to the essence. The tendency is to hold that non-performance of one instalment will justify a refusal to proceed with the rest of the contract. A agreed to deliver to B 600 tons of iron during three months in equal portions to-wit: 200 in June, 200 in July and 200 in August. A actually delivered 20 tons in June and 21 tons in July. Here there is a contract for instalments which themselves are split into units. In the United States, each instalment is regarded as a unit, and if it is not fully performed, it is a breach in limine.29 But English courts regard this as a breach after part performance, and consequently no excuse for non-performance by the other party.30

Defective quality does not generally seem to excuse future performance of accepting the remaining in

29 Rugg v. Moore, 110 Pa. St. 236; Williston, Sales (2d ed.), § 467. 30 Freeth v. Burr, L. R. 9 C. P. 208 (Eng.).

stalments, unless they are also of poor quality, although a contrary doctrine also exists.31

179. Renunciation of contract.-If A agrees to convey a tract of land to B on January second, and fails to do so on that date, B would have a right of action immediately. But if in the October preceding A had announced that he would not convey, the problem is whether B may sue him at once, or whether he must wait until the time for performance arrives. Before B changes his position, however, A may generally repent and withdraw his repudiation even against B's protests.32

Renunciation before performance. Parties to a contract which is wholly executory have a right to the maintenance of the contractual relation up to the time of performance, as well as to a performance when it is due. Therefore, if A renounces his obligations before such a time, B, if he so desires, is excused from performing his obligations. Moreover, the general rule permits B to sue A at once for the breach. He need not wait until the time set for performance arrives.33

In the case of Frost v. Knight,34 A promised to marry B upon his father's death. While his father still lived, A renounced the contract. B was permitted to sue at once. "The promisee," said the court, "has an inchoate right to the performance of the

31 Cahen v. Platt, 69 N. Y. 348; Fullan v. Wright & Colton Co., 196 Mass. 474.

32 Traver v. Halsted, 23 Wend. 66 (N. Y.).

33 Windmuller v. Pope, 107 N. Y. 674, LEADING ILLUSTRATIVE CASES. Contra, Daniels v. Newton, 114 Mass. 530.

34 L. R. 7 Exch. 111, 114 (Eng.).

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."

In a leading English case35 A engaged B to enter his service in June, but notified him in May not to come. He was held liable in an action by B, although suit was brought before the time for performance had arrived. The court based its decision on the ground that a relation is created between the parties by the contract which the parties impliedly promise not to prejudice.36

There are certain requirements, however, which must be satisfied in order to apply this rule. Thus, the renunciation must cover the entire performance to which the contract binds the promisor.37 A partial renunciation does not confer an immediate right of action. In the case of Johnstone v. Milling,38 the landlord agreed among other things to repair the premises at a certain time. Before that time arrived, he repudiated this particular covenant. The tenant sued for damages at once. It was held that the contract was the whole lease and that the anticipatory breach of one covenant did not entitle the tenant to sue at once.

Furthermore, there must be no question but that it is a renunciation, for a mere expression of an intention not to perform is insufficient.

35 Hochster v. De La Tour, 2 E. & B. 678 (Eng.).

36 See Roehm v. Horst, 178 U. S. 1.

37 Anson, Contracts (Huffcut's 2d ed.), § 362.

38 16 Q. B. D. 460 (Eng.).

39 See Dingley v. Oler, 117 U. S. 490.

Finally,

the rules as to anticipatory breach apply only to bilateral contracts.40

If B, after A announces his renunciation, chooses not to regard it as an anticipatory breach, and continues to insist on performance, the contract is not discharged. It remains in existence for the benefit of both parties.11 Consequently, where the renunciation is not accepted, the promisor is again entitled to any defense that may arise. In Avery v. Bowden,42 A agreed that his ship sail to Odessa and there take on a cargo from X's agent, to be loaded within a set time. X's agent refused to supply a cargo. A was then entitled to treat the refusal as a breach. Instead, the number of days not having expired, the master of the ship continued to demand performance. Then, still within the time limit of the contract, a war broke out. Thereby performance became legally impossible, and when A sued for breach of contract because of the agent's refusal, the court held that the renunciation not having been accepted, and the time limit not having expired, X was entitled to exoneration because of the war.

Although the parties may not increase the damages by attempted performance, neither may the renouncing party force the other to sue for breach before the day fixed for performance. The cases

40 Lawson, Contracts, § 440.

44

41 John A. Roebling's Sons' Co. v. Lock Stitch Fence Co., 130 Ill. 660. 42 5 E. & B. 714 (Eng.).

43 Clark v. Marsiglia, 1 Denio 317 (N. Y.), LEADING ILLUSTRATIVE CASES. 44 John A. Roebling's Sons' Co. v. Lock Stitch Fence Co., 130 Ill. 660; Kadish v. Young, 108 Ill. 170. The general rule in damages is that if A who is building a table for B is notified B will not take the table, A must stop work in order to reduce the damages. See subject, DAMAGES.

are not of one accord in deciding the problem of damages.

Renunciation during performance. Renunciation by one party in the course of performance discharges the other party from a continued performance of his promise. The latter can sue at once in a contract action for the breach, or he may recover under the rules of quasi-contracts.45

This rule is frequently illustrated in contracts of sale. A contracted with the B company to supply them with a certain number of railway chairs to be delivered in certain quantities at specified dates. After there was a part performance of the contract, B company notified A to deliver no more chairs. He brought an action for breach of contract and averred his readiness and willingness to perform the remainder of the contract. The B company argued that in addition thereto, he must prove an actual delivery. The court held that where a contract was renounced by one party, the other need only show that he was willing to perform his part. "When there is an executory contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods contracted for, gives notice to the vendor not to manufacture any more, as he has no occasion for them and will not accept or pay for them, the vendor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, main

45 See subject, QUASI-CONTRACTS; Hale v. Trout, 35 Cal. 229; Anson, Contracts (Huffcut's 2d ed.), § 379.