P. P. Emory Manufacturing Co. v. Salomon

Holmes, C. J. This is an action of contract for a failure to sell and deliver certain metals as agreed. The contract was to ship on February 1,1899. On January 25 the defendants wrote to the plaintiff that they would not keep their contract. The plaintiff replied that it should hold them .to their bargain, and on February 2 made a further demand of performance. At the trial the contract and breach having been proved, the plaintiff asked the judge to rule that the measure of damages was the difference between the contract price and the market price on February 1. The judge refused the request, and ruled that the date to be taken was that of the defendants’ letter, January 25. The plaintiff excepted. The ruling requested should have been given. Even in England where perhaps the courts would go further than we do in the way of allowing an anticipatory notice that the defendant will not perform his contract to be treated by. the plaintiff as a breach, it seems to be settled that “ the promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-perform-once.” Frost v. Knight, L. R. 7 Ex. 111, 112. Johnstone v. Milling, 16 Q. B. D. 460,470, 473, Roehm v. Horst, 178 U. S. 1, 19. A fortiori the same is true when, as in this case, the promisee, 584 had he wished to do so, would not have been allowed to treat the notice as a breach. Daniels v. Newton, 114 Mass. 530. O’Brien v. Boland, 166 Mass. 481, 484. A notice which gives the promisee no right to damages cannot bind him as conclusive that the contract will not be performed, and so put upon him a responsibility to see that the damages are no greater than they need be. It is a mere prophecy, and as such may be disregarded. Until the moment when a refusal to perform is a wrong, he has a right to expect that when the time comes a wrong will not be done. Sedgw. Damages, (8th ed.) § 224. The case has nothing in common with that of a refusal after the time of performance has arrived. Kadish v. Young, 108 Ill. 170, 185. Davis v. Bronson, 2 No. Dak. 300, 303. See Martin v. Meles, Suffolk, May 23, 1901. See further, for the rule of damages which we adopt, Leigh v. Paterson, 2 Moore, 588; Phillpotts v. Evans, 5 M. & W. 475; Kadish v. Young, 108 Ill. 170, 178; Sedgw. Damages, (8th ed.) § 758. Exceptions sustained.