Hart-Parr Co. v. Finley

On Petition for Rehearing.

Goss, J.

Appellant’s counsel has petitioned for a rehearing. They assert that §§ 5775, 5821, and 5824, Comp. Laws 1913, “preserve a right to defendant to withdraw his repudiation; the time within which such right to withdraw may be made expires only with maturity of the obligation; the right thus preserved is as valuable to defendant as *146it is to plaintiff; the right thus preserved is merely the right which has been created or fixed by the contract.” That these sections “together necessarily, obviously, and clearly provide that the contract remains in force.” And (2) that these sections cover the subject under consideration to the exclusion of the common law.

The statutes cited constitute no guaranty to the repudiator of an executory contract that the other party must, in the face of notice given of a determined repudiation, nevertheless suffer the violator to remain in full enjoyment of all rights under the contract he would possess had he not repudiated. No such intent is manifest from the statutes in question. It is to the other party not in default to whom these statutes speak, and for whose benefit they stand. They have been in force since long before the decision of Stanford v. McGill, and will apply after the overruling of the doctrine of that case as fully as they did before. In fact, they have no application whatever to the subject under discussion, that of anticipatory breach. They support neither contention concerning it, nor aid in determining which of the two should be selected as the law of this jurisdiction.

As to the second contention, it is already answered by the statement that these statutes are not upon the subject under investigation. But if they were, the Codes are not exclusive where the statute is silent, but only where it speaks. A sufficient discussion of this question will be found in the decision of this court in Reeves & Co. v. Russell, 28 N. D. 265, 148 N. W. 654, where a similar contention, citing the same cases here relied upon, is treated at length.

Exception is taken by plaintiff to what counsel terms the overruling by dictum of Stanford v. McGill, as to the doctrine of anticipatory breach; and that this “should not be lightly done;” “that eliminating freight, there has been no enhancement or increase of damages.” In answer it may be said that “eliminating freight,” there would have been no necessity for counsel or the court to discuss anticipatory breach of contract; “eliminating freight,” there would have been no issue made of enhancement of damages; “eliminating freight,” there could have been no "dictum” concerning Stanford v. McGill. But there was no possibility of “eliminating freight” in considering the issues, as plaintiff has sued for its recovery, and assigned error on its *147denial thereof. Necessity for its discussion is set forth in the opinion. There is no desire to lightly overrule any precedent, but at times it is as wise as it is necessary to recognize a mistake when convinced that it is such. Counsel concede, as they must, that the almost unanimous weight of authority and precedent support our action and the conclusions announced. It is deemed better to overrule this precedent, than by citing it indirectly affirm it. All other questions presented in the petition for a rehearing are but an additional argument to that presented before the opinion was written, and are already answered in the opinion. The petition is denied.