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the contract, there has been no such retractation here. In Cort 2. The Ambergate, Nottingham and Boston, and Eastern Junction Railway Company, 17 Q. B. 127 (E. C. L. R. vol. 79), it was held, that, on a 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, gives notice to the vendor not to manufacture any more, as the purchaser bas no occasion for them, and *will not accept or pay for them, the vendor having been ryt desirous and able to complete the supply, the latter may, with. out manufacturing or tendering the rest of the goods, maintain an action against the purchaser for breach of the contract; and that proof of such notice by the purchaser will entitle the plaintiff to recover, on a count alleging that he was ready and willing to perform the contract, and that the defendant refused to accept the residue of the goods, and prevented and discharged the plaintiff from supplying them, and from further executing the contract. In Hochster v. De la Tour, 2 Ellis & B. 678 (E. C. L. R. vol. 75), the plaintiff declared on an agreement to employ him as a courier from a day subsequent to the date of the writ; averring that the plaintiff, from the time of the agreement till the refusal by the defendant after mentioned, was ready and willing to perform his part of the contract; and alleging for breach, tbat, before the day for the commencement of the employment, the defendant refused to perform the agreement, and discharged the plaintiff from performing it, and wrongfully put an end to the agreement. Upon motion in arrest of judgment, it was held that a party to an executory agreement may, before the time for executing it, break the agreement either by disabling himself from fulfilling it, or by renouncing the contract; and that an action will lie for such breach before the time for the fulfilment of the agreement; that it sufficiently appeared on the face of the declaration that there was on the part of the defendant, not merely an intention to break the contract, of which intention he might repent, but a renunciation communicated to the plaintiff, on which the plaintiff was entitled to act; and consequently that the plaintiff was entitled to judgment. “It seems strange,” said Lord Campbell, “that the defendant, after renouncing the contract, and *absolutely declaring that he will never act under it, should *120 be permitted to object that faith is given to his assertion, and 17 that an opportunity is not left to him of changing his mind.” The only ground upon which that decision has since been questioned, is, that there was nothing to show that the plaintiff had acted upon the renunciation. The case was deliberately reconsidered by the Court of Queen's Bench in Avery v. Bowden, 5 Ellis & B. 714, 728 (E. C. L. R. vol. 85), where Lord Campbell says: “According to our decision in Hochster v. De la Tour, to which we adhere, if the defendant, within the running-days, and before the declaration of war, had positively informed the captain of The Lebanon that no cargo had been provided or would be provided for him at Odessa, and that there was no use in his remaining there any longer, the captain might bave treated this as a breach and renunciation of the contract; and thereupon, sailing away from Odessa, he might have loaded a cargo at a friendly port from another person, whereupon the plaintiff would have had a right to maintain an action on the charter-party to recover damages equal to the loss he had sustained from the breach of contract on the part of the defendant.” In Avery v. Bowden, the renunciation, or that which was relied upon as such,-- was not acted upon. In Goodman 2. Pocock, 15 Q. B. 576, 583 (E. C. L. R. vol. 69), which was an action by a clerk for a wrongful dismissal in the middle of a quarter, Erle, C. J., says: “The plaintiff had the option either to treat the contract as rescinded, and sue for his actual service, or to sue on the contract for the wrongful dismissal.” Elderton v. Emmens, 6 C. B. 160 (E. C. L. R. vol. 60), affirmed in Dom. Proc., Emmens v. Elderton, 13 C. B. 495 (E. C. L. R. vol. 76), 4 House of Lords Cases 624, is an authority to the same effect. *170] *7207 Bovill, Q. C. (with whom was Honyman), for the defend.
a ant.(a)-The plaintiffs cannot be said to have acted upon the defendant's alleged renunciation of the contract until they had entered into a binding contract for the conveyance of their goods to the Black Sea with Messrs. Smith & Co., and that was not until the 2d of August, which was after the plaintiff's received notice from the defendant that he was ready to receive the goods on board his ship. Whatever he may have said before, Mr. Xenos having intimated his readiness to receive the goods on the 1st of August, he was guilty of no breach of the contract on his part, and the Company were bound to perform it on theirs. The cases of Goodman v. Pocock and Elderton v. Emmens have no application here. It being the duty of an employer to continue the services of his clerk or other employee until duly terminated, the unlawful dismissal constitutes a complete breach, and a complete cause of action. So, in Cort v. The Ambergate, &c., Railway Company, it could not be necessary for the plaintiff to *171] *16747 manufacture the residue of the chairs after *the Company had
"I given hinn notice that they would not accept or pay for them. The action was brought after the time for the delivery had elapsed. [BYLES, J.-Here, the action was not commenced until after the 1st of August.] In Hochster v. De la Tour, 2 Ellis & B. 689 (E. C. L. R. vol. 75), Campbell, C. J., in delivering the judgment of the Court, says: "The declaration in the present case, in alleging a breach, states a great deal more than a passing intention on the part of the defend. ant which he may repent of, and could only be proved by evidence that he had utterly renounced the contract, or done some act which rendered it impossible for him to perform it." Nothing of the sort has occurred here. The same learned judge says in Avery v. Bowden, 5 Ellis & B. 728 (E. C. L. R. vol. 85),—“The language used by the defendant's agent before the declaration of war can hardly be con.
(a) The points marked for argument on the part of the defendant (Xenos) were as follows:
“1. That, having been ready to perform his contract at the time fixed for its performance, he is not liable to be sued by the Company for a breach of it:
“2. That, upon the correspondence and facts, there was no breach by him of his contract with the Company:
“ 3. That the Company were not ready and willing to ship the goods at the time fixed for shipment, and are consequently not entitled to recover :
“ 4. That the letter of the 21st July, 1860, at the utmost only authorized the Company to elect to treat the contract as rescinded, and sue on a quantum meruit for anything due under it; but that, having elected to treat the contract as subsisting and binding, they cannot sue Mr. Xenos, who was willing to perform it:
“5. That Mr. Xonos, having been ready to receive the goods at the stipulated time, is entitled to recover damages for the non-shipment."
sidered 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 continued to insist upon having a cargo in fulfilment of the charter-party.” Again, in Reid v. Hoskins, 5 Ellis & B. 7:29, 744, Lord Campbell says: “There is great difficulty in saying that at any time there ever was any renunciation of the contract which, had the plaintiffs been present, would have authorized them to consider it at an end, and to bring this action for refusing to load the ship before the expiration of the time within which the defendant undertook to load her. But, at all events, if they had such option, they were bound to exercise it: and they could not both hold the defendant to the prospective performance of the contract and at the same time say that it was renounced.” That is precisely what the plaintiffs were seeking to do here. (WILLIAMS, J.In the notes to Cutter v. Powell, in 2 Smith's Leading Cases 1, where these cases are considered, reference is *made to the r*400 judgment of Parke, B., in Phillpotts v. Evans, 5 M. & W.475, 1? 477 ;+ and the learned editors say: "Perhaps the cases are reconcilable, by supposing that the judgment in Hochster v. De la Tour applies to cases in which, in consequence of the refusal, something has taken place to interfere with the performing the contract when the time arrives.”] The rule is clearly stated by Parke, B., in Phillpotts v. Evans. That was an action for not accepting wbeat contracted to be sold to the defendant and delivered at a future time. The ques. tion was as to the proper mode of estimating the damages. His lordship says: “If Mr. Richards could have established that the plaintiffs, after the notice given to them, could have maintained the action without waiting for the time when the wheat was to be delivered, then perhaps the proper measure of damages would be according to the price at the time of the notice. But 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 nuility, and it was perfectly in his power to accept them nevertheless; and, vice versa, the plaintiffs could not sue him before. The same rule was adopted in Startup v. Cortazzi, 2 C. M. & R. 165.7 The notice amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the mean time, and rescinds the contract.” Suppose the acceptor of a bill, before it *arrives at maturity, says to the holder, “I shall not pay the r*7472 bill when presented," could it be contended for a moment that ? that gave the holder a present right to sue upon a quantum meruit? In Barrick v. Buba, 2 C. B. N. S. 563, 579 (E. C. L. R. vol. 89), Cockburn, C. J., in the course of the argument, says: “Avery i. Bowden is a distinct authority to show that the charterer's saying 'I cannot perform the contract,' does not amount to a breach until the expiration of the time stipulated by the contract for its performance. It is no renunciation : he does not affect to say that he thereby gets rid of his obligation.” [BYLES, J.—That is hardly a correct representation of Avery v. Bowden: it cannot be what the Lord Chief Justice said.] In King v. Gillett, 7 M. & W. 55,7 to a declaration in assumpsit founded on mutual promises to marry within a reasonable time, it is a good plea, that, after the promise, and before any breach thereof, the plaintiff absolved, exonerated, and discharged the defend ant from his promise and the performance thereof. Alderson, B., delivering the judgment of the Court, there says: “There are prece dents in several of the books of entries,(a) and there are two decided authorities, Holland and Conier's Case, 2 Leon. 214, and Langden v. Stokes, Cro. Car. 383. And we think this latter case explains the matter, and reconciles the present plea with general principles. It seems to have been treated there as a mere question of the form of plea; and so we think it is: for, although we are of opinion that this plea is good in point of form; yet we think the defendant will not be able to succeed upon it at Nisi Prius, in case issue be taken upon it, unless he proves a proposition to exonerate on the part of the plaintiff, acceded to by himself; and this in effect will be a rescinding of the contract previously made.” [WILLIAMS, J.-Suppose De la Tour *4247 *had brought an action against Hochster for not entering into
3 his service as courier, would the action have been maintainable?] Not if Hochster had at once assented to and acted upon De la Tour's renunciation of the contract. The plea alleging that the plaintiff exonerated and discharged the defendants from the performance of their contract, affords no answer to the breach, inasmuch as there could be no discharge except by the mutual consent of the contracting parties.
Mellor, Q. C., was not called upon to reply.
ERLE, C. J.-In the case of The Danube and Black Sea Railway and Kustendjie Harbour Company v. Xenos, I am of opinion that our judgment should be for the plaintiffs. The action is for not receiving on board the defendant's ship Mavrocordatos certain rolling stock, plant, and materials from the plaintiffs for conveyance to Kustendjie, pursuant to contract: and the question is whether or not the defendant has been guilty of a breach of that contract. It is to be taken that the contract was made between Mr. Fitze and Mr. Parkes as agents for the respective parties, and that it was a contract binding the defendant to receive the goods on board on the 1st of August, 1860. Has that contract been broken? Before the arrival of the 1st of August, viz., on the 21st of July, the defendant, Xenos, sent to the plaintiffs a letter in which he denied the existence of the contract, and gave them notice that he did not hold himself responsible for it. That alone would not constitute a breach of the contract: but, on a subse. quent day, viz., the 23d of July, the plaintiffs' attorneys gave him a formal notice that they considered the contract binding, and were ready on their part to perform it, and that, if he persisted in his *74757 refusal to perform it on his part, they *would hold him respon
woj sible for all loss, damages, and expenses that might ensue. The defendant, in his answer to that communication, again denied the existence of the contract referred to, and tendered another contract fo:
(a) Rast. Entr. 685; Brown's Entr. 67 (fol. edit.); Hern's Pleader 31.
that the the respeeceive then brok
and the happened holding
the acceptance of the Company. On the 24th of July, the plaintiffs' attorneys again wrote to the defendant informing him that the plaintiffs declined to sign any other agreement than that already concluded between them and his agent Fitze, and repeating the intimation, that, as he still persisted in disavowing the contract, the plaintiffs would forthwith proceed to make other arrangements, holding him responsible for the consequences. All this happened before or on the 24th of July. Between that day and the 1st of August, the plaintiffs entered into a contract with Messrs. Smith & Co, to take out their rolling stock, plant, and materials to Kustendjie. On the 1st of August, the defendant gave notice to the plaintiffs that he was then ready to receive their goods on board the Mavrocordatos. The question is, had the original contract been broken by the defendant. I am of opinion that the law has been well laid down in the cases referred to on the part of the plaintiffs, that, where a contract is for the performance of a thing on a given day, it is competent to the party who is to perform it to declare before the day that he will not perform it, and then the other party has the option of treating that as a breach of the contract. In Cort v. The Ambergate Railway Company, 17 Q. B. 127 (E. C. L. R. vol. 79), it was held, that, upon the Company giving notice to Mr. Cort that they would not receive any more of his chairs, he might abstain from manufacturing them, and sue the Company for the breach of contract without tendering the goods for their acceptance. So, in Hochster v. De la Tour, 2 Ellis & B. 678 (E. C. L. R. vol. 75), it was held that the courier whose services were engaged for a period to commence *from a future day, being r*16 told before that day that they would not be accepted, was at liberty to treat that as a complete breach, and to hire himself to another party. And the boundary is equally well ascertained on the other side. Thus, in Avery v. Bowden, 5 Ellis & B. 714 (E. C. L. R. vol. 85), 6 Ellis & B. 953 (E. C. L. R. vol. 88), where the agent of the charterer intimated to the captain, that, in consequence of the breaking out of the war, he would be unable to furnish him with a cargo, and wished the captain to sail away, and the latter did not do so, it was held not to fall within the principle already adverted to, and not to amount to a breach or renunciation of the contract. But, where there is an explicit declaration by the one party of his intention not to perforin the contract on his part, which is accepted by the other as a breach of the contract, that beyond all doubt affords a cause of action. I therefore think the Company under the circumstances had a right to sue Mr. Xenos for his breach of contract. As to whether it was competent to the defendant before the day for the performance of the contract to retract his declaration of breach,—which I incline to think it was not,-I am of opinion that the facts do not raise it. The defendant disclaimed being bound by the contract made on his behalf by Fitze, and tendered another and a different contract: and then, on the 1st of August, he professed his willingness to receive the goods on board his vessel. But, under which contract? If the Company had then sent the goods, it might have been evidence against them of an acceptance of the substituted contract proposed by Xenos, which materially differed from that which they had made with his clerk Fitze. I think the contract was broken by Xenos when he