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........... 386

PAGE New York.

South Caroliva. 1877, Laws of 1877, c. 321... 331 1787, Mar. 28, 5 Stat. 24.... 92 1881, Laws of 1881, c. 361... 122 Tennessee.

1892, Laws of 1892, c. 690.332, 404 1877, Mar. 21, Laws of 1877, North Carolina.

p. 44, c. 31...291, 296, 299, 302 Code, 574, c. 7, art. 5..... 306 Code of 1884, § 4539, c. 3, Ohio.

art. 4...
1836, Mar. 9, Laws of 1836, Vermont.
p. 346. ..................: 254

1804, Nov. 6, Laws of 1804, 1885, May 2, 82 Laws, 220

p. 96, c. 80............... 434

254, 255 Virginia. Oregon.

Code of 1887, c. 134........ 366 Hill's Ann. Laws, $ 1268.308, 310 West Virginia.

§ 1270.... 308 1877, Feb. 22, Laws of 1877, Pennsylvania.

p. 19, c. 18.......... 156 1782, Mar. 27, Laws of 1782, c. 5..

.... 91

(C.) FOREIGN STATUTES. Great Britain.

Great Britain (cont.). 1747, 20 Geo. II, c. 10.....

1780, 20 Geo. III, c. 28...... 1756, 29 Geo. II, c. 14.....

1784, 24 Geo. III, c. 31...... 1758, 31 Geo. II, c. 22.....

1848, 11 & 12 Vict., c. 42.... 472 1777, 17 Geo. II1, c. 39....

1894, 57 & 58 Vict., c. 30.... 1779, 19 Geo. III, c. 51....








No. 188. Argued March 15, 16, 1900. – Decided May 14, 1900.

After a careful review of all the cases, American and English, relating to

anticipatory breaches of an executóry contract, by a refusal on the part of one party to it to perform it, the court holds that the rule laid down in Hochster v. De la Tour, 2 El. & Bl. 678, is a reasonable and proper rule

to be applied in this case. That rule is that after the renunciation of a continuing agreement by one

party, the other party is at liberty to consider himself absolved from any future performance of it, retaining his right to sue for any damages he has suffered from the breach of it; but that an option should be allowed to the injured party, either to sue immediately, or to wait till the time when the act was to be done, still holding it as prospectively binding for

the exercise of this option. The parties to a contract which is wholly executory have a right to the maintenance of the contractual relations up to the time for performance,

as well as to a performance of the contract .when due. As to the question of damages, when the action is not premature, the plain

tiff is entitled to compensation based, as far as possible, on the ascertainment of what he would have suffered by the continued breach of the other party down to the time of complete performance, less any abatement by reason of circumstances of which he ought reasonably to have availed himself.

This was an action for breach of four certain contracts, brought VOL. CLXXVIII-1


Statement of the Case.

by Paul R. G. Horst and others against John Roehm in the Circuit Court of the United States for the Eastern District of Pennsylvania, in January, 1897, and was tried under a stipulation, waiving a jury, before Dallas, Circuit Judge, who made a special finding of facts, and, on the facts so found, gave judgment for plaintiffs. 84 Fed. Rep. 565. The case was carried by defendant to the Circuit Court of Appeals for the Third Circuit, and the judgment of the Circuit Court was affirmed. 62 U. S. App. 520. Thereupon Roehm applied to this court for a writ of certiorari, which was granted, and the cause subsequently heard here.

The Circuit Court found that “On August 25th, 1893, the firm of Horst Brothers, composed of Paul R. G. Horst, E. Clemens Horst and Louis A. Horst, the legal plaintiffs, entered into four written contracts with John Roehm, the defendant, of which the following are copies :

Hop Contract. “Memorandum of agreement made and entered into by and between Horst Brothers, doing business in the city of New York, parties of the first part, and John Roehm, party of the second part.

“Witnesseth: That the said parties of the first part agree to sell and deliver to the party of the second part, and that the party of the second part agrees to purchase, pay for, and receive from the party of the first part one hundred (100) bales, prime Pacific Coast hops of the crop of 1896. Three and one half pounds tare to be deducted on each bale. Said hops to be delivered ex dock or store, New York city, and to be paid for in net cash ten days from date of arrival at the rate of twentytwo (22) cents per pound.

“Time of shipment, 20 bales each month, October, November, December, January and February, except as hereafter provided.

“If at any time a difference of opinion shall exist regarding the quality or condition of any hops submitted or tendered under this agreement, each party shall select an arbitrator, to whom the question of the quality and condition shall be submitted,

Statement of the Case.

and in case of their disagreement, a third arbitrator shall be selected by the two thus chosen, and the decision of the majority of the three shall be final; and in case the decision shall be that the ḥops tendered are not equal to the quality above called for, the parties of the first part shall, within thirty days after receipt of written notice of such decision, submit samples or tender delivery to the party of the second part, other hops, in fulfillment of this agreement, and party of the second part agrees to receive same.

"In witness whereof, the said parties have bereunto set their hands, Phila., this 25th day of August, 1893.

“HORST Bros.

“ John Roehm."" [Here followed a second, third and fourth contract, of same tenor and under same date, the second for one hundred bales of the crop of 1896, to be shipped twenty bales each month, in the months of March, April, May, June and July; the third for one hundred bales of the crop of 1897, to be shipped, twenty bales each month, in the months of October, November, December, January and February; and the fourth for one hundred bales of the crop of 1897, to be shipped twenty bales each month, in the months of March, April, May, June, and July.]

“The months named in each of these contracts respectively, as 'time of shipment,' must, under the custom of the trade, be understood as meaning the month so named, which would follow next after the summer months of the year of the crop referred to in the particular contract.

“On June 23d, 1896, the firm of Horst Brothers was dissolved, and Paul R. G. Horst assigned to his copartners, E. Clemens Horst and Louis A. Horst, the use plaintiffs, all the interest of him, the said Paul R. G. Horst in the said contracts.

« Upon June 23d, 1896, a notice, of which the following is a copy, was addressed to and received by the defendant:

“6 June 23, 1896. « • Dear Sir: We beg to inform you that the partnership of Horst Brothers has been this day dissolved.

“• Respectfully yours,


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