performance by him is due. This can be done as well by preventing the taking of those preliminary steps without which the final step cannot be taken as by preventing the taking of such final step itself. These preliminary steps must often precede by many days the time of performance, and it therefore must follow that notice of refusal to carry out the contract in such a case given before the time of performance, will operate as a breach of the contract in case the time has arrived at which the person willing to keep the contract may enter upon the work under the contract.
Counsel refer to the statute touching rescission of contracts, and insist that the appellant has not shown that the case falls within any of the provisions of such statute. In this he is correct. There was no recission of the contract. A lawful recission of an agreement puts an end to it for all purposes, not only to preclude the recovery of the contract price, but also to prevent the recovery of damages for breach of the contract. This is the common law rule, and our statute merely echoes this rule. "A contract is extinguished by recission.” § 3588, Comp. Laws. Coun. sel seem to be unable to make the distinction between the right of one party to refuse to perform his agreement, always subject to his liability for damages, and the recission or utter destruction of a contract for all purposes, resulting from mutual consent, or from the action of one party alone, where by reason of fraud, duress or other legal ground for recission, the right is vested in him to elect to abrogate the contract without liability thereunder for damages or for the contract price. The burden of the argument seems to be that no person can break a contract unless he can and does rescind it. The result is that no compact can ever be violated so as to subject the person attempting to infringe it to damages, for there is no breach on this theory, except in cases where there can be no breach, because by recission the contract is annihilated so effectually that in contemplation of law it has never had any existence, even for the purpose of being broken. The two lines of thought run in diverse directions. One starts with the fact that one party has refused to perform, and leads to the conclusion that the other party must do uothing from the moment he is aware of
