Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-07

sci. did not sit, and the court being
equally divided, the decree of the
trial court was affirmed. Livesley &
Co. V. Krebs Hop Co., 1O7 Pac., 460;
112 Pac, 1. AS to the crop of 1907,
plaintiff obtained a judgment against
defendants for $4,000 damages, for
failure TO perform. Krebs Hop. Co.
v Livesley & Co., 104 Pac., 8.
The principle point relied upon by
defendants for the reversal of this
case, is their contention that the con-
tract, out of which this action arose,
is an entire contract, and plaintiff
having obtained certain judgments
against defendants on account of
their breach thereof, it is barred and
estopped from recovering anything in
this action. That the contract, being
an entire contract, the plaintiff, on
account of the breach thereof on the
part of defendants, may carve but
once on account of such breach, and
that the measure of damages for the
breach of the contract, assuming that
defendants were guilty Of such
breach is the difference between the
contract price and the market value
of 100000 pounds of hops on March
oath, 1906, the date on which defen-
dants gave notice that the contract
was abrogated. From this conten-
ton it seems that defendants as
sumed they could by their own acts
or declarations terminate the contract
without the aid or consent of the
other party, naming the remedy
plaintiff should pursue. 1t appears
defendants sought to cancel the con-
tract, but plaintiff refused to ac-
quiesce therein,or to permit defen-
dants to rescind. AS stated in L. S.
& M. S. Ry. Co. v. Richards, 152 ILL.,,
SO, 80: ut is we'll settled that where
one party repudiates the contract and
refuses longer to be bound by 1t, the
injured party has an election to pur-
sue either of three remedies: ~ He
may treat the contract as rescinded;
and recover upon quantum meruit so
far as he has performed; or (2) he
may keep the contract alive for the
benefit of both parties, being at all
times himself ready and able to per-
form, and at the end of the time
specified in the contrac fotr perform
ance, sue and recover, under the con-
tract; or (S) he may treat the re-
pudiation as putting an end to the
contract for all purposes Of per-
formance. and sue for the profits he
would have realized if he had not
been prevented from performing"
The plaintiff in this case has elect
ed to rely upon the second remedy
to keep the contract alive for the
benefit of both parties, being at all
times himself ready and able to per-
form, and at the end of the time
specified for performance, sue and
recover. Upon reason and authority
one party cannot, by any act or
declaration, destroy the binding force
Of q nOptro ot Kodirb " Vo,,no 10Q
ILL.,, 10, 176; "a Am. & Eng. Ency. of
L., 1884. AS stated by Sedgwick on
Damages (6th ed.), $40: "An effort
has been made in many cases by the
purchaser to relieve himself from
the contract of sale before the time
fixed for performance by giving no
tice that he would not be ready to
complete the agreement, and in these
cases it has been insisted that the
damages should be estimated as at
the time Of giving notice; but the
English courts have justly denied
the right of either party to rescind
the agreement, and have adhered to
the day of the breach as the period
for estimating damages" And in
Kadish v. Young, supra: "If a party
is not compelled to accept the declar-
ations of the other party to a con-
tract that he will not perform it, as
breach, it must logically follow
that he is under no obligation to re-
gard that declaration for any purpose
for, as we have seen, the theory in
such case, as laid down by Cockburn,
Ch. j. in Frost V. might (L, R.