Woodman v. Blue Grass Land Co.

Tbe following opinion was filed May 2, 1905: WiNsnow, J. While there were a "number of questions raised by tbe appellant in this case and ably argued by him in person both in bis brief and upon bis oral argument, it appears very conclusively to us that a single well-established legal principle adopted by this court establishes tbe correctness of tbe judgment. That principle is that,when one party to an executory contract, before tbe time appointed for performance, repudiates it by deliberately- declaring that be will not perform, tbe other party may treat tbe contract as terminated and recover tbe damages sustained by tbe other’s breach. Merrick v. N. W. Nat. L. Ins. Co. 124 Wis. 221, 102 N. W. 593. The injured party is not required to perform on bis part, unless, indeed, it be a contract of wbicb specific performance is desired and could properly be decreed; but be [494] may cease bis own efforts to perform and demand damages for tbe other’s breach. In this state and in many jurisdictions that action may be maintained at once, but in some j u-risdictions it cannot be maintained until the day of performance has been passed. That question, however, is of no importance here. Merrick v. N. W. Nat. L. Ins. Co., supra; Davis v. Bronson, 2 N. Dak. 300, 50 N. W. 836; Gibbons v. Bente, 51 Minn. 499, 53 N. W. 756; Shaw v. Republic L. Ins. Co. 69 N. Y. 286; Leake, Contracts (4th ed.) 615-617; 9 Cyc. 637, 638, 698, 699. The principle is that, unless the contract be one of which a court of equity will decree specific performance, either party may terminate it pending its performance, subject only to the payment of the damages which the other party sustains thereby. The effect of such termination is to stop the performance at the point then reached, subject to the payment of damages, but not to undo what has •already been done thereunder. In other words, the act of termination or repudiation stops the progress of events just where it finds them, but has no retroactive effect, and cannot, in reason, have any such effect. Applying that principle to the present case, it is very plain that the plaintiff cannot recover. The earnest money was voluntarily paid by the plaintiff at the inception of the contract as a part payment thereon and was rightfully in defendant’s possession. The plaintiff repudiated the contract while there was still ample time for the defendant to perform. By that act he did not and could not affect the character of the acts which had already been performed in carrying out the. contract, and manifestly could not reinvest himself with the title to the earnest money. This is so plain that further discussion is unnecessary. Francis B. Hart, for the motion. Harold Harris and John Barnes, contra. By the Oourt. — Judgment affirmed. The appellant moved for a rehearing.