Where the agreement is mutual and de pendent, and one party fails to perform his part, the other party may treat it as rescind ed ; South Texas Telephone Co. v. Hunting ton (Tex.) 121 S. W. 242 ; and he is not bound to tender performance ; Hollerbach & May Contract Co. v. Wilkins, 130 Ky. 51, 112 S. W. 1126. The abandonment of a ship is a renunciation of the contract of affreight ment ; The Eliza Lines, 199 U. S. 119, 26 Sup. Ct. 8, 50 L. Ed. 115, four judges dis senting. Where one party to a contract re fuses, by anticipation, to perform the con tract, the other party may consider it a breach and sue immediately; Hochster v. De la Tour, 2 El. & Bl. 678. In Frost v. Knight, 7 Ex. 111, defendant had promised to marry plaintiff as soon as his father should die. While his father was yet alive, he absolutely refused to marry plaintiff ; it was held that an action would lie during the father's lifetime. In 17 Q. B. 127, • it was held that upon the defendant railroad com pany giving notice to plaintiff that it would not receive any more of its chairs, it might sue for the breach without tendering the goods. In 16 Q. B. Div. 467, it was held that where one party by anticipation refuses to perform the contract, it entitled the other party, if he pleased, to agree to the contract being put an end to. In Dingley v. Oler, 117 U. S. 502, 6 Sup. Ct. 850, 29 L. Ed. 984, the court considered the cases, but declined to decide whether or not the rule should be maintained as applicable to the class of cases to which the one then before it belonged ; and said it has been called in England a "novel doctrine" and has never been applied in that court.
The cases of Foss-Schneider Brewing Co.
v. Bullock, 59 Fed. 87, 8 C. C. A. 14, and Edward Hines Lumber Co. v. Alley, 73 Fed. 603, 19 C. C. A. 599, followed Hochster v. De la Tour. In Horst v. Boehm, 84 Fed. 569. Dallas, J., was of opinion that the question was an open one, so far as the supreme court was concerned, and followed the ruling of Judge Lowell in Dingley v. Oler, 11 Fed. 372, supported by the two federal cases last above mentioned. He considered that Judge Lowell had answered the argument of the court in Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384 ; and concurred with him in think ing that the cases which follow the English rule are "founded in good sense, and rest on strong grounds of convenience however difficult it may be to reconcile them with • the strictest logic." Wallace, C. J., in Marks v. Van Eeghen, 85 Fed. 853, 30 C. C. A. 208, considered that Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 29 L. Ed. 984, was a dictum, and that there was an overwhelming preponderance of adjudication in favor of the doctrine of Hoch ster v. De la Tour. He cited also Nichols v. Steel Co., 137 N. Y. 471, 33 N. E. 561; Kalkhoff v. Nelson, 60 Minn. 284, 62 N. W. 332 ; Davis v. School-Furniture Co., 41 W. Va. 717,. 24 S. E. 630.
In Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953, 4 Ann. Cas. 406, the court reviewing the English and American cases; held that, upon such breach, the oth er party may consider himself absolved f,rom any future performance, and either sue im mediately, or wait till the time when the act was to be done, still holding the contract as prospectively binding for the exercise of his option.
In The Eliza Liffes, 199 U. S. 119, 26 Sup. Ct. 8, 50 L. Ed. 115, 4 Ann. Cas. 406, Holmes, J., said: "A repudiation of a contract, amounting to a breach, warrants the other party in going no further in performance on his side. Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953, 4 Ann. Cas. 406." The rule adopted in Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953, 4 Ann. Cas. 406, was applied in John A. Roebling's Sons' Co. v. Fence Co., 130 Ill. 660, 22 N. E. 518 ; Windmuller v. Pope, 107 N. Y. 674, 14 N. H. 436; id., 12 N. Y. St. Rep. 292; Hock ing v. Hamilton, 158 Pa. 107, 27 Atl. 836; McCormick v. Basal, 46 Ia. 235; Davis v. Furniture Co., 41 W. Va. 717, 24 S. E. 630; Remy v. Olds, 88 Cal. 537, 26 Pac. 355; Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep. 275.
The renunciation must be unequivocal and absolute ; and must be acted upon by the oth er parties and must terminate the entire con tract ; [1900] 2 Ch. 298 ; John A. Roebling's Sons' Co. v. Fence Co., 130 Ill. 660, 22 N. E. 518. It does not operate as a rescission of the contract, because one party alone can not rescind ; but the other, party may adopt such renunciation with the effect that the contract is at an end, except for the purpose of bringing an action for the damages conse quent upon the renunciation ; [1910] 2 Ch. 248. The rule in Hochster v. De la Tour was disapproved in Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384, and Stanford v. Mc Gill, 6 N. D. 536, 72 N. W. 938, 38 L. R. A. 760, on elaborate consideration. The rejec tion of the rule in the former case was based upon its inapplicability to commercial paper, but in Roehm v. Horst, 178 U. S. 17, 20 Sup. Ct. 780, 44 L. Ed. 953, it was pointed out that in that case the consideration had passed, there were no mutual obligations, and that such case did not fall within the rea son of the rule, citing Nichols v. Steel Co., 137 N. Y. 487, 33 N. E. 561.
See Wald's Anson, Contracts (Williston's ed.) 355.
Where a trust company agrees to make a loan upon a building to be built and later repudiates the agreement, a right of action arises at once and the prospective borrower need not wait until the building is completed; Holt v. Ins. Co., 74 N. J. L. 795, 67 Atl. 118, 11 L. R. A. (N. S.) 100, 12 Ann. Cas. 1105. In New York it is held that an action will not lie at once where the maker of a draft declares he will not pay it on maturity; Benecke v. Haebler, 38 App. Div. 344, 58 N. Y. Supp. 16 ; and so where an insurance com pany decides to limit the amount payable, on existing policies ; Langan v. Supreme Coun cil, 174 N. Y. 266, 66 N. E. 932 ; Porter v. Supreme Council, 183 Mass. 326, 67 N. E. 238; contra, O'Neill v. Supreme Council, 70 N. J. L. 410, 57 Atl. 463, 1 Ann. Cas. 422.