breach. A special loss which would not naturally flow from the breach must be stated in express terms if it is to be recovered.31

4. With the exception of the breach of promise of marriage, damages for the breach of a contract are not punitive, only compensatory.

5. The damages for a breach are often stated by the parties in express terms in the contract. Whether the courts will deem them a penalty or liquidated damages will depend upon whether the amount approximates the actual damage or not.

6. An injured party must exercise reasonable care not to increase his damages.32

7. A party is entitled to damages even though it is difficult to assess them.33

(g) Methods of discharging the right of action arising upon a breach of contract.

As soon as a breach occurs a right of action arises in favor of the injured party. He may begin suit at once, as we have seen in some of the previous rules, or he may defer litigation for a time; the right of action still subsisting and continuing until discharged. As a general rule, at any intermediate date between the day the cause of action arises and the day it is discharged the injured party may bring suit.

1. Discharge may take place by consent of the parties either by a release or by accord and satisfaction. If by release or waiver, it should be made under seal; otherwise it would be a promise without consideration to support it.34 Bills and notes are exceptions to the rule. If discharge takes place by accord and satisfaction, the plaintiff must receive consideration for his promise not to sue and it must be made in his favor.3

35

2. The remedy growing out of the right of action may be barred by the lapse of time; this bar is imposed by the Statute

31 Rochester Lantern Co. v. Stiles etc. Co., 135 N. Y. 209; Fox v. Boston etc. R., 148 Mass. 220; Wolcott v. Mount, 36 N. J. L. 262.

32 Parsons v. Sutton, 66 N. Y. 92; Clark v. Marsiglia, 1 Denio (N. Y.) 317.

33 Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Beeman v. Banta, 118 N. Y. 538; Swain & Schieffelin, 134 N. Y. 471.

34 Hale v. Spaulding, 145 Mass. 482; Pierce v. Parker, 4 Met. (Mass.) 80; Collyer v. Moulton, 9 R. I. 90.

35 Kromer v. Heim, 75 N. Y. 574; McCreery v. Day, 119 N. Y. 1.

of Limitation. The right of action does not die, and if in any way the bar is removed the right of action revives.36

3. A right of action may be discharged by a judgment of the court. The right is merged into a so-called contract of record.37 When judgment is so given in one court upon the merits of the case, either by consent or by decision of the court, the judgment discharges the obligation by estoppel and the plaintiff cannot bring another action for the same cause as long as the judgment stands.3

38

CASES.

SECTION III.-DISCHARGE BY BREACH.

Discharge by the renunciation of the contract before the performance is due.

WINDMULLER et al. v. POPE et. al.

107 NEW YORK, 674.-1887.

This was an action to recover damages for alleged breach of a contract to purchase a quantity of iron. Verdict for plaintiffs. Judgment affirmed at General Term.

In January, 1880, the parties entered into a contract for the sale by plaintiffs and purchase by defendants of "about twelve hundred tons old iron, Vignol rails, for shipment from Europe at sellers' option, by sail or steam vessels to New York, Philadelphia, or Baltimore, at any time from May 1 to July 15, 1880, at thirtyfive dollars per ton, deliverable in vessels at either of the above ports on arrival." On or about June 12, 1880, defendants notified plaintiffs that they would not receive or pay for the iron, or any part of it, and advised that plaintiffs better stop at once in attempting to carry out the contract. Plaintiffs thereupon sold the iron abroad which they had purchased to carry out the contract.

Per Curiam. We think no error is presented upon the record

86 Campbell v. Holt, 115 U. S. 620.

27 Miller v. Covert, 1 Wend. (N. Y.) 487; Vanuxem v. Burr, 151 Mass. 386.

38 Nashville etc. Ry. v. United States, 113 U. S. 261; Gould v. Sternberg, 128 Ill. 510.

which requires a reversal of the judgment. The defendants having on the 12th of June, 1880, notified the plaintiffs that they would not receive the iron rails or pay for them, and having informed them on the next day that if they brought the iron to New York they would do so at their own peril, and advised them that they had better stop at once attempting to carry out the contract, so as to make the loss as small as possible, the plaintiffs were justified in treating the contract as broken by the defendant at that time, and were entitled to bring the action immediately for the breach, without tendering the delivery of the iron, or awaiting the expiration of the period of performance fixed by the contract; nor could the defendants retract their renunciation of the contract after the plaintiffs had acted upon it, and by a sale of the iron to other parties changed their position. Dillon v. Anderson, 43 N. Y. 231; Howard v. Daly, 61 Id. 362; Ferris v. Spooner, 102 Id. 12; Hochster v. De La Tour, 2 El. & Bl. 678; Cort v. Ambergate &c. Railway Co., 17 Ad. & El. 127; Crabtree v. Messersmith, 19 Ia. 179; Benjamin on Sales, §§ 567, 568.

The ordinary rule of damages in an action by a vendor of goods and chattels, for a refusal by the vendee to accept and pay for them, is the difference between the contract price and the market value of the property at the time and place of delivery. Dana v. Fiedler, 12 N. Y. 40; Dustan v. McAndrew, 44 Id. 72; Cahen v. Platt, 69 Id. 348.

*

All concur.

Judgment affirmed.39

DINGLEY et al. v. OLER et al.

117 UNITED STATES, 490.-1886.

Assumpsit for damages for alleged breach of contract. Judgment for plaintiffs. Writs of error by both parties.

Plaintiffs, in 1879, sold defendants a quantity of ice to be returned by defendants the following year. Ice was then worth fifty cents a ton. Next season, in July, when ice was worth five dollars a ton, plaintiffs demanded a return of the amount delivered. Defendants replied: "We must, therefore, decline to ship the ice

39 See also Kurtz v. Frank, 76 Ind. 594.

for you this season, and claim as our right to pay you for the ice in cash at the price you offered other parties here (that is, fifty cents), or give you ice when the market reaches that point." In answer to another demand defendants replied in substance the same and asked for a reply or a personal interview. Plaintiffs thereupon, without waiting for the end of the season, commenced this action.

MR. JUSTICE MATTHEWS. We differ, however, from the opinion of the Circuit Court that the defendants are to be considered, from the language of their letters above set out, as having renounced the contract by a refusal to perform, within the meaning of the rule which, it is assumed, in such a case, confers upon the plaintiffs a right of action before the expiration of the contract period for performance. We do not so construe the correspondence between the parties. In the letter of July 7th, the defendants say: "We must, therefore, decline to ship the ice for you this season, and claim, as our right, to pay you for the ice, in cash, at the price you offered it to other parties here, or give you ice when the market reaches that point." Although in this extract they decline to ship the ice that season, it is accompanied with the expression of an alternative intention, and that is, to ship it, as must be understood, during that season, if and when the market price should reach the point which, in their opinion, the plaintiffs ought to be willing to accept as its fair price between them. It was not intended, we think, as a final and absolute declaration that the contract must be regarded as altogether off, so far as their performance was concerned, and it was not so treated by the plaintiffs. For, in their answer of July 10th, they repeat their demand for delivery immediately, speak of the letter of the 7th instant as asking "for a postponement of the delivery," urge them "to fill our order," and close. with "hoping you (the defendants) will take a more favorable view upon further reflection," etc. Here, certainly, was a locus penitentiæ conceded to the defendants by the plaintiffs themselves, and a request for further consideration, based upon a renewed demand, instead of abiding by and standing upon the previous one.

Accordingly, on July 15th, the defendants replied to the demand for an immediate delivery to meet the exigency of the plaintiffs' sale of the same ice to others, and the letter is evidently and expressly confined to an answer to the particular demand for a delivery at that time. They accordingly say: "Now you ask us at a time when we are pressed by our sales and by short supply threatening

us and others, to deliver to you the equivalent in tons of the ice taken from you under the circumstances stated. This does not seem to us to be fair," etc. "We cannot, therefore, comply with your request to deliver to you the ice claimed, and respectfully submit that you ought not to ask this of us in view of the fact stated herein and in ours of the 7th." This, we think, is very far from being a positive, unconditional, and unequivocal declaration of fixed purpose not to perform the contract in any event or at any time. In view of the consequences sought to be deduced and claimed as a matter of law to follow, the defendants have a right to claim that their expressions, sought to be converted into a renunciation of the contract, shall not be enlarged by construction beyond their strict meaning.

The view taken by the Circuit Court of the correspondence and conduct of the parties, and which we hold to be erroneous, brought the case within the rule laid down by the English courts in Hochster v. De La Tour, 2 El. & Bl. 678; Frost v. Knight, L. R. 7 Ex. 111; Danube & Black Sea Railway Co. v. Xenos, 11 C. B. N. S. 152; and which, in Roper v. Johnson (L. R. 8 C. P. 167, 168) was called a novel doctrine; followed by the courts of several of the States (Crabtree v. Messersmith, 19 Iowa, 179; Holloway v. Griffth, 32 Iowa, 409; Fox v. Kitton, 19 Ill. 519; Chamber of Commerce v. Sollitt, 43 Ill. 519; Dugan v. Anderson, 36 Maryland, 567; Burtis v. Thompson, 42 N. Y. 246); but disputed and denied by the Supreme Judicial Court of Massachusetts in Daniels v. Newton (114 Mass. 530) and never applied in this court. Accordingly, the right to maintain the present action was justified upon the principle supposed to be established by those cases.

The construction we place upon what passed between the parties renders it unnecessary for us to discuss or decide whether the doctrine of these authorities can be maintained as applicable to the class of cases to which the present belongs; for, upon that construction, this case does not come within the operation of the rule involved.

In Smoot's Case (15 Wall. 36) this court quoted with approval the qualification stated by Benjamin on Sales (1st ed. 424, 2d ed. § 568) that,

"A mere assertion that the party will be unable, or will refuse to perform his contract, is not sufficient; it must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for, if he