356 HARVARD LAW REVIEW. decided is whether, on such an assumption, the defendants in the con- duct of their commercial affairs have done anything that is unjustifiable in law." A good illustration of his method, down to the examination of authorities, may be found in Johnstone v. Milling: ^ — "The question which we have to decide arises with regard to the defendant's counterclaim. The claim made by the defendant is upon a covenant [in a lease to him], by which the plaintiff undertook, after the expiration of four years from the commencement of the term, to rebuild the premises upon notice from the defendant to do so. The defendant says that before the time had arrived for the performance by the plaintiff of this obligation he repudiated his liability on the contract, and so con- ferred an immediate right of action on the defendant. We have, therefore, to consider on what principles and under what circumstances it must be held that a promisee, who finds himself confronted with the declaration of intention by the promisor not to carry out the contract when the time for the performance arrives, may treat the contract as broken, and sue for breach thereof. It would seem, on principle, that the declaration of such intention is not in itself and unless acted on by the promisee a breach of contract ; and that it only becomes a breach when it is converted by force of what follows into a wrongful renunciation of the contract. Its real operation appears to be to give the promisee the right of electing either to treat the declaration as brutiim fulmen, and, holding fast to the contract, to wait till the time for its performance has arrived, or to act upon it, and treat it as a final assertion by the promisor that he is no longer bound by the contract and a wrongful renunciation of the contractual relation into which he has entered. But such declara- tion only becomes a wrongful act if the promisee elects to treat it as such. If he does so elect, it becomes a breach of contract and he can recover upon it as such. Upon looking to the reason of the thing, it seems obvious that in the latter case the rights of the parties under the contract must be regarded as culminating at the time of the wrongful renunciation of the contract, which must then be regarded as ceasing to exist except for the purpose of the promisee's maintaining his action upon it ; it would be unjust and inconsistent with all fairness that the promisee should be entitled to bring his action as upon a wrongful renunciation of contract, and yet to treat the contract as still open and existing as regards the future. Such being the reason of the thing, the authorities seem to be all the same way." And then he proceeds to examine the authorities and apply them in the decision of the case. It v^^as his invariable method 1 i6 Q. B. D. 472.
