Landes v. Klopstock

252 F. 89 | 2d Cir. | 1918

LEARNED HAND, District Judge

(after stating the facts as above). [1,2] This case, strictly speaking, docs not involve the doctrine of anticipatory breach, because the action was brought after June 15th, upon which day the defendant’s obligation to pay for the sugar became absolute. The shipment of the sugar could not become a condition precedent to that obligation, unless the defendant had given notice on or before June 5th that he required shipment on June 15th, which he never gave. Therefore, unless the plaintiffs bjr their conduct had at that time excused the defendant’s default, their right of action is clear. In the consideration of the case, however, the doctrine of anticipatory breach does become indirectly involved.

The defendant’s excuse is the plaintiffs’ letters of May 31st and June 1st, announcing that, if the defendant did not advise them on or before June 5th where they should ship the sugar, they would sell it on his account. This they clearly had no right to do, because the defendant might, if he chose, pay before shipment, a possibility contemplated in the contract. He was under no duty to give 10 days’ notice at any time, though he could not. get delivery without it. Such a notice, followed by the sale of the sugar, excused the defendant’s performance, unless it was itself in turn excused by the defendant’s letter of May 23d, which was a total repudiation of the contract. It is upon this last question that the case turns.

Upon receipt of the defendant’s letter the plaintiffs need have done nothing; they could have waited till June 15th and sued the defendant under any of the remedies open to a seller, or they might themselves have declared the contract at an end, save for their right to sue at once under the doctrine of anticipatory breach. It is perfectly clear that they did not mean to declare the contract at an end. Three times in their letters they speak of the defendant’s duty under the contract to give the notice, and they leave no ground for doubt that they intended to hold the defendant to his performance according to the contract as they understood it.

We need not consider whether, having taken that attitude towards the contract, the plaintiffs were excused from further performance if the defendant’s obligation had been conditional. The English rule is that the promisee, if he means to ignore the repudiation, must still perform, quite as .though the promisor had not repudiated. The language of Lord Cockburn in Frost v. Knight, L. R. 7 Ex. 111, 112, has been accepted generally, and in Dalrymple v. Scott, 19 Ontario Appeals, 477, it was the basis of the decision. True, it is difficult to see how these cases can be reconciled with the well-settled rule in this country that, when the promisor repudiates,, the promisee not only need not perform, but, if he chooses to perform, does so on his own account. Clark v. Marsiglia, 1 Denio (N. Y.) 317, 43 Am. Dec. 670; Dillon v. Anderson, 43 N. Y. 231; Danforth v. Walker, 40 Vt. 257; Moline Scale Co. v. Beed, 52 Iowa, 307, 3 N. W. 96, 35 Am. Rep. 272; Heaver v. Ranahan, 74 Md. 493, 22 Atl. 263; Gibbons v. Bente, 51 Minn. 499, 53 N. W. 756, 22 L. R. A. 80; Davis v. Bronson, 2 N. D. 300, 50 N. W. 836, 16 L. R. A. 655, 33 Am. St. Rep. 783. In the case at bar we have not that question, because the plaintiffs had no conditions precedent to perform; they were required to do nothing until the day of payment arrived. We may therefore assume that the American rule obtains.

They chose, on the other hand, to take positive action, and in that they erred, for only two courses were open to them, and they attempted an intermediate. They might have declared the contract at an end and sued at once. We pass the question whether any other declaration is necessary beyond the bringing of an action; we do not hold that there must be a prior acceptance of the rescission, so called. They did not accept the repudiation in any way; on the contrary, they refused to recognize it, quite as clearly as though they had said: “We decline to recognize your right to repudiate.” Having so ignored it, as was .their right, they added a condition, not. authorized by the contract, upon which their own continued performance was to depend. This they had no right to do. Rubber, etc., Co. v. Manhattan, etc., Co., 221 N. Y. 120, 116 N. E. 789. It is true that they supposed they were acting under the contract, and the case is a hard one, but no harder than any other in which a party acts upon an interpretation of a contract, with which the courts do not agree. That is a hazard all must run.

[3] It is suggested that, as the plaintiffs had the right to declare an immediate breach, they might accord the defendant the right to retract, and that their letters should be taken as equivalent to a declaration that, if the defendant persisted in his repudiation until June 5th, they would accept the repudiation. They might have done this; but they did not. The question is whether we may regard their insistence upon the contract, which they misunderstood, as in effect a declaration that it was at an end. While we have avoided deciding whether such a declaration is necessary in order to sue upon a repudiation, either before or after the stipulated time of performance, we do hold that, if the promisee insists upon performance, he waives the right so to sue upon the repudiation, certainly if he does not himself retract in season.

Judgments affirmed, with costs.

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