In a contract for the purchase of a, horse in return for personal services for a specified period, where the buyer refuses to work, the seller may• retake the horse ; Cleary v. Mor son, 94 Miss. 278, 48 South. 817; where one cancels an order for clothing before it is manufactured, the seller cannot complete the manufacture and sue for the full contract; he is bound to reduce his damages as far as posSible; Woolf v. Hamburger, 129 App. Div. 883, 114 N. Y. Supp. 186.
Though a party has waived a breach for which he could have declared a forfeiture, he may still counterclaim damages for such breach; Clark v. West, 193 N. Y. 349, 86 N. E. 1; neither payments on account, nor per mitting the contractor to complete the work after the specified time, is a waiver of such damages; Reading Hardware Co. v. City of New York, 129 App. Div.'292, 113 N. Y. Supp. 331; nor taking possession of a building be fore completion; Mikolajewski v. Pugell, 62 Misc. 449, 114 N. Y. Supp. 1084. But where the defendant has himself repudiated the contract after the delivery of one installment he is barred from setting up the defective ness of such installment subsequently dis covered ; 21 T. L. R. 413. Where govern ment officials test and accept a defective dock in ignorance of such defects which if known would have led to a refusal to accept, the government is not precluded from refusing it on subsequent discovery ; U. S. v. Walsh, 115 Fed. 697, 52 C. C. A. 419.
An anticipatory breach will operate as a present breach only if accepted and acted up on by the other party, who may disregard it and await the appointed day. If not ac cepted by the other party, the renunciation may be withdrawn before performance is due, but if not withdrawn it is evidence of a continued intention to that effect. It oper ates as a continued waiver of all condi tions precedent to the liability for perform ance; Leake, Contract 639.
As to one endeavoring to persuade a third party to break his contract, see INJUNCTION.
In Pleading. That part of the declaration in which the violation of the defendant's con tract is stated.
It is usual in assumpsit to introduce the statement of the particular breach, with the allegation that the defendant, contriving and fraudulently intending craftily and subtilely to deceive and defraud the plaintiff, neglect ed and refused to perform, or performed, the particular act, contrary to the previous stip ulation.
In debt, the breach or cause of• action complained of must proceed only for the non payment of money previously alleged to, be payable; and such breach is very similar whether the action be in debt on simple con tract, specialty, record, or statute, and is usually of the following form: "Yet the said defendant, although often requested so to do, hath not as yet paid the said sum of dollars, above demanded, nor any part thereof, to the said plaintiff, but hath hither to wholly neglected and refused so to do, to the damage of the said plaintiff dollars, and therefore he brings suit," etc.
The breach must obviously be governed by the nature of the stipulation; it ought to be assigned in the words of the contract, either negatively or affirmatively, or in words which are coextensive with its import and effect; Comyns, Dig. Pleader, C, 45; 2 Wms. Saund. 181 b, c; Fletcher v. Peck, 6 Cra. (U. S.) 127, 3 L. Ed. 162. And see Hughes v. Smith, 5 Johns. (N. Y.) 168; Bender v. From berger, 4 Dail. (U. S.) 436, 1 L. Ed. 898; Craghill v. Page, 2 Hen. & M. (Va.) 446: Steph. Pl. (And. ed.) 115.
When the contract is in the disjunctive, as on a promise to deliver a horse by a par ticular day, or to pay a sum of money, the breach ought to be assigned that the de fendant did not do the one act nor the oth er; 1 Sid. 440; Hardr. 320; Comyns, Dig. Pleader, C.