Page:Harvard Law Review Volume 5.djvu/257

241 LECTURE NOTES. 241 1 neck, and, according to the defendant's testimony, advanced toward him. The defendant fired five times, and the thief died soon after. The jury, instructed to find the prisoner guilty if they believed the theft was committed and the thief was fleeing from the place, brought in a verdict of murder in the second degree. An appeal was then brought, and it turns out that under the Texas idea of justifiable homicide the verdict cannot stand. The court below erred in refusing an instruction, asked by the defendant, that if the de- ceased were within gunshot of the place where he had stolen, the shooting was justifiable, no matter how completely he had abandoned the property or how desperately he was attempting to flee. The code expressly puts among the exceptions to the rule that the killing must take place before the offence has been committed, the following : " In case of burglary and theft by night the homicide is justifiable at any time while the offender is in the building or at the place where the theft is committed, or is within reach of gunshot from such place or building." Perhaps an adequate criticism of this remarkable way of discourag- ing theft is suggested in the court's quiet remark that "This statute of ours, in so far as this and other enumerated exceptions are concerned, is an invasion upon the rule of the common law, and is, so far as we know, sui generis " THE LAW SCHOOL LECTURE NOTES. [These notes were taken by students from lectures delivered as part of the regular course of in- struction in the School. They represent, therefore, no carefully formulated statements of doctrine, but only such informal expressions of opinion as are usually put forward in the class-room. For the form of these notes the lecturers are not responsible.] Repudiation of Contracts. — {From Professor Williston's Lect- ures •.) —The point at issue is this: Suppose a contract between A and B by which B contracts to sell land to A on December 1 ; if A before that time erects a house on it, which A contracts to do, now in case B on November 1 notifies A that he will not carry out his contract, what are A's rights ? Is he entitled to sue B immediately, alleging as a breach the failure of B to perform ? It would seem that B was not bound to perform his promise to con- vey the land until after he had received performance of the condition precedent. Two views are open : (1) The first, which has the weight of authority on its side, is that the notice operates as a repudiation of the contract, and that A may treat this as a breach of contract just as if B had failed to perform, and may sue for this breach; (2) The second view treats the case as analogous to prevention by B of performance of a condition precedent, and the breach should be laid on the implied covenant by B to receive A's performance or not to prevent it. Now when B on November 1 announces that he will not perform his promise on December 1, what constitutes the breach of contract? The announcement alone is not the essential thing. B has a perfect right to say whatever he likes, provided he is ready to perform on the ap- pointed day. But a change in the situation comes if A acts on the refusal; that is, as soon as B has really prevented A's performing his