2 E.B. & B. 678, 118 Eng. Rep. 922
The plaintiff, a courier, and the defendant entered into an agreement on 12 April 1852.1 Under its terms, the plaintiff was to serve as the defendant's courier on a tour of the continent of Europe beginning 1 June 1852 for three months at a monthly salary of 10l.2 The plaintiff agreed to be ready to start on that date, and the defendant promised to employ him on those terms.3
On 11 May 1852 the defendant wrote to the plaintiff that he had changed his mind, declined the services, and refused any compensation.4 The plaintiff had remained ready and willing to perform from the time of the agreement.5 The action was commenced by writ dated 22 May 1852.6
Between the filing of the suit and 1 June the plaintiff secured employment with Lord Ashburton on terms equally good, though the new engagement was not to begin until 4 July.7 At the trial before Erle J. during the London sittings in Easter Term, the defendant's counsel contended that no breach could occur before 1 June.8 The judge left the remaining questions to the jury, which returned a verdict for the plaintiff, while reserving leave to enter a nonsuit on the timing objection.9
The defendant then obtained a rule nisi to enter a nonsuit or arrest the judgment.10 The principal question presented on the motion was whether a contract can be broken before the day fixed for performance arrives when one party has repudiated it in advance.11
Whether a party to an executory contract may commence an action for damages before the day fixed for performance when the other party has repudiated the agreement in advance?12
Where one party to an executory contract gives notice that he refuses to proceed with performance, the other party may treat the contract as at an end and sue immediately for damages, or keep the contract alive and wait until the time for performance.13 This principle draws support from analogies to wrongful dismissal of servants, where immediate action is permitted and mitigation of damages by obtaining other employment is relevant.14 Authorities such as Planche v. Colburn show that a renunciation dispenses with conditions to be performed in the meantime and permits the injured party to elect immediate suit on the special contract.15
Yes. The defendant on 11 May 1852 wrote to the plaintiff declining his services and refusing compensation, thereby effecting a clear and final renunciation rather than a mere passing intention.16 The plaintiff, who had remained ready and willing from the making of the agreement, commenced suit on 22 May 1852.17 The parties stood in a relation of mutual engagement from the date of hiring until the employment was to begin.18 The defendant's utter renunciation constituted a breach of that implied contract.19 This absolved the plaintiff from further readiness while preserving the right to sue for damages and to mitigate loss by seeking other employment.20
The same reasoning that permits immediate action when a promisor marries another before the promised wedding day, or assigns a term to a stranger before the promised assignment date, extends to the present repudiation.21 Calculation of damages before the performance date presents no insuperable obstacle, because the jury may consider all events increasing or mitigating loss up to the day of trial, just as it would if suit were brought after the three-month term had expired.22
The declaration is sufficient to state a cause of action, and judgment must be given for the plaintiff on the motion to arrest judgment.23