BREACH. In Contracts. The violation of an obligation, engagement, or duty.
A continwing breach is one where the con dition of things constituting a breach con tinues during a period of time, or where the acts constituting a breach ate repeated at brief intervals ; F. Moore 242 ; Holt 178 ; 2 Ld. Raym. 1125.
The right to rescind a contract for non performance is -a remedy as old as the law of contract itself. When the contract is en tire—indivisible—the right is unquestioned. The undertakings on the one side and on the other are dependent, and performance by the one party cannot be enforced by the other without performance or a tender of performance on his own part ; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366. In that case plaintiff agreed to ship 5,000 tons of rails at the rate of about 1,000 tons a month beginning in February, and the whole contract to be shipped before the first of August of the same year. Only 400 tons were shipped in February and 885 in March, and it was held that the failure to fulfill the contract in respect to these first two installments justified the rescission of the whole contract, provided that the defendants distinctly and and asserted their right to rescind ; and the fact that the defendants had accepted the shipment of 400 tons in February was no waiver of this right, be cause it took place without notice or means of knowledge that the stipulated quantity had not been shipped in February. An Eng lish case in 1859 allowed rescission on the ground of insufficient delivery of the first installment of an iron contract ; 5 H. & N. 19. Where on a year's contract for furnish ing coke, payment to be made on the twen tieth of each month for the deliveries of the preceding month, it was held that there might be a breach of the contract on the twenty-third of the mouth, if the sum were still unpaid ; Hull Coal & Coke Co. v. Coal & Coke Co., 113 Fed. 256, 51 C. C. A. 213. The supreme court of Michigan has decided, in a contract to deliver wood in installments, that a refusal to pay for the third install ment was not such a breach as to excuse the defendant from making further deliveries, on the ground that the defendant's refusal to pay did not evince an intention no longer to be bound by the contract ; West v. Bechtel,
125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791. This case, is distinguished from Norrington v. Wright, supra, in that the latter was a breach for non-delivery and the Michigan case was a breach for non-payment.
In Iowa it was held that a failure to pay for a shipment of coal within thirty days, as agreed in a contract for the shipment of a certain amount in quantities as ordered, does not go to the whole consideration of the contract, and does not therefore give the -right to rescind; • Osgood v. Bauder, 75 Ia. 550, 39 N. W. 887, 1 L. R. A. 655 ; contra, Ross-Meehan Foundry Co. v. Wheel Co., 113 Tenn. 370, 83 S. W. 167, 68 L. R. A. 829, 3 Ann. Cas. 898 ; and in New Jersey a failure to deliver the first installment of goods on a contract for delivery in installments does not justify a rescission by the buyer ; Gerli v. Silk Mfg. Co., 57 N. J. L. 432, 81 Atl. 401, 30 L. R. A. 61, 51 Am. St. Rep. 611. Acts indicating an intention to abandon a con tract justify the aggrieved party in rescind ing, but mere breach in performance, with out repudiation, cannot warrant rescission ; 9 C. P. 208; [1900] 2 Ch. 298. Where one party to a contract is guilty of a breach, the other party is at liberty to treat the contract as broken and desist from any further ef fort on his part to perform. Such an aban donment is not technically a rescission of the contract, but merely an acceptance of the situation which the wrongdoing of the other party has brought about ; Anvil Min. Co. v. Humble, 153 U. S. 540, 14 Sup. Ct. 876, 38 L. Ed. 814; Pierce v. R. Co., 173 U. S. 1, 19 Sup. Ct. 335, 43 L. Ed. 591; Roehm v. Horst, 178 U. S. 14, 20 Sup. Ct. 780, 44 L. Ed. 953. It has been held that when a contract is repudiated by one party, and the other party has not elected to treat such a repudiation as a breach, the latter is not excused from continuing to perform on his part ; Smith v. Banking Co., 113 Ga. 975, 39 S. E. 410.