5. Breach of a subsidiary some sub sidiary promise in a contract is broken, the contract may not be discharged, but an action for damages may arise. The parties may consider that the subsidiary promise is of such importance that its literal fulfilment is a condition precedent, and if this is so it will be treated as a condition precedent. If, on the other hand, it is clear from the surrounding circumstances that some subsidiary promise, tho apparently of first importance and on its face a condition precedent, is not really vital, and that its non-fulfilment might be adequately compensated for in damages, then, if such an intention or understanding is sufficiently expressed, such a, condition will not be treated as a condition precedent.
There is a distinction to be made between a war ranty which gives rise to an action in damages, and a condition the fulfilment or non-fulfilment of which is of the essence of the contract, in that it strikes at the foundation of the contract. Thus if A sells a horse to B, and he believes it to be sound and warrants that it has not the heaves, and B could discover by having the horse examined by a veterinary surgeon whether it has or has not the heaves, in some jurisdictions B would have an action in damages against A, if after the sale the horse proved to have this wealmess. If, however, A sold a horse to B on the condition that it should, with training and within three months, de velop a certain speed as a racehorse, this would be a condition precedent, upon the non-fulfilment of which B could ask to have his contract canceled, and demand the return of the price upon his handing back the horse.
6. Breach by before or at the time that a contract is to be performed, a party may declare that he repudiates or renounces the con tract and will not perform his part of it. If he so re nounces before the time of performance, the contract may or may not be discharged, accordingly as the other party does or does not treat it as discharged. The other party may treat the contract as discharged and take action at once for any damages, or he may wait until after the time for performance, in which case he is entitled meanwhile to insist that the relation created by the contract shall persist up to the time fixed for performance. In an English case, it was held that "the promisee has an inchoate right to the performance of the bargain, which becomes complete when the time for the performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract; its unim paired and unimpeached efficacy may be essential to his interests." The mere intention of one of the parties to renounce is not sufficient. The renunciation must be express, positive and unqualified. The contract may be in the course of performance, and then it being renounced, the other party may immediately take action for dam ages. Thus it was held in an English case, that "when
there is an executory contract for the manufacture 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 ac cept or pay for them, the vendor being desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of contract." It has been held in a Quebec case that, where a person contracts for the manufacture of machinery, and afterwards notifies the manufacturer that lie will not accept delivery of it unless certain guarantees respecting it, not mentioned in the con tract, be given to him, he is thereby held to repudiate the contract and he becomes liable for the price of the machinery, less whatever value it may have for the manufacturer.' So also if a person contracts to give his services to a company, and his personal services are the foundation of the contract, his refusal to give his services entitles the other party to rescind the agree ment.
If the parties to a contract abandon it by mutual consent after it has been partly performed by one party, the latter is entitled to receive a reasonable price for the work he has done. If, however, a board of school commissioners employs a teacher for eight months, and before the school opens informs him that his services will not be required, the teacher may treat the contract as discharged and sue the board for dam ages; or he may wait until the expiry of the eight months and sue on the contract for his salary. Of course, meanwhile he must not refuse other work, and what he may earn in the meantime under another contract will go toward reducing the amount that he may claim under his original contract.
A enters into a contract with B for the purchase of B's farm. Payment is to be made in several in stalments, and upon payment of the last one B is to deliver to A the deed of the farm. A refuses to pay the second instalment when due, and B sues him for it. B may recover. A's promise to pay each instal ment, other than the last one, is independent of the covenant to convey; hence B may sue him for each instalment other than the last without offering to con vey the farm. But in order that one party may de mand the rescission of a contract which is in the course of being performed, the other party must be actually in default to fulfil his contract. It is not sufficient for the other party to allege merely that under the circumstances it is impossible for the party perform ing to fulfil or complete his contract within the delay specified.