Page:North Dakota Reports (vol. 2).pdf/329

 formance arrives, finally determine whether he will stand by his agreement or by his former repudiation thereof. All that these cases decide is that the repudiating party may not force the other party to sue for a breach of the contract before the time of performance arrives, and therefore have his damages fixed by the condition of affairs at the time of the premature repudiation of the contract, as though such repudiation had been made on the day of the performance. But when the time to perform arrives, then, if the refusal to carry out the agreement is not withdrawn, there is no principle on which the other party to the contract can perform and sue for the contract price any more than in the case of a refusal made for the first time on the very day of performance. The party keeping the contract need not mitigate the damages by treating as final a premature repudiation thereof, but this is far from establishing the proposition that he may increase the amount to be paid by the other party by completing the contract after notice of repudiation, made on the day of performance, or made before that day, and never withdrawn, but, on the contrary, constantly insisted upon down to and including that day. In Kadish v. Young, 108 Ill. 170-185, the soundness of the cases cited to sustain our conclusion is expressly recognized. After citing some of them, the court says: “It will be observed in each of these cases the time for the performance of the contract had arrived, and ‘its performance had been entered upon. In neither of them was the defendant at liberty, after notifying the plaintiff not to proceed further in the performance of the contract, to demand that he should proceed to perform it. As it was said in Frost v. Knight, L. R. 7 Exch. 111, the defendant was, in case of notice, not to perform a contract the time of performance of which is to commence in the future. In these cases there is no time or opportunity for repentance or change of mind; in those there was.” The court quote with approval the language used in Danforth v. Walker, 37 Vt. 244, where the court say: “While a contract is executory, a party has the power to stop performance on the other side by an explicit direction to that effect by subjecting himself to such damages as will compensate the other party for being stopped in the performance on