4 F.2d 997 | 2d Cir. | 1924
What is called1 a bill of exceptions in this record requires some notice. It is 118 printed pages long, of which at least 30 are wholly superfluous, in that they consist of colloquies between counsel—doubtless once important, hut of no use on appeal. The remainder is in question and answer, although the legal result in several instances was that plaintiff offered certain testimony, which the court rejected. It seems to be necessary to remind the bar that rulings such as we made in Radford v. United States, 129 F. 49, 63 C. C. A. 491, and Linn v. United States, 251 F. 476, 483, 163 C. C. A. 470, have never been overruled or abandoned. We have examined this bill of grace, and not of right. We would be justified in declining to consider the errors assigned.
The meat of this legal nut, however, is veiy small. Argument at this bar has largely been devoted to the question whether plaintiff had the right to claim an anticipatory breach by Cerf in respect of renewal premiums and in so doing invoke the doctrine of Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 44 L. Ed. 953, in respect of the
Plaintiff never had with defendant any contract of a more formal nature than one inferable from the act of hiring. He was never discharged, but terminated his engagement of his own motion. He sued in the only way he could sue for the reasonable value of such services as he had performed. Assuming, but not holding, that the doctrine of anticipatory breach can he applied to a demand of this nature, it is always true that, before the doctrine can be invoked, it must be shown that the renunciation by the defendant of the existing contract must be absolute, unequivocal, and cover the entire performance to which the contract hinds the promisor. This is fundamental; it is stated in substance in the Roehm Case, supra, and discussed at length when considering prematurity of suit in Dingley v. Oler, 117 U. S. 490, 502 et scq., 6 S. Ct. 850, 29 L. Ed. 984, suid stated with many further citations in 13 C. J. 654.
Plaintiff did not show any such complete renunciation by Cerf. On the contrary, the evidence shows that, after Corf’s alleged statement that he would pay no renewal premiums, he did actually pay some of them at least, and plaintiff accepted them. Having thus taken the benefit of what could have been offered to him only on the assumption of an existing and continuing contract, he is in no position to invoke the doctrine of law by virtue of which he could get any more than the amount awarded him by direction of the court.
Judgment affirmed, with costs
