But the plaintiffs could not, in the face of this refusal on his part to perform, undertake and carry to completion the work under the contract to be performed by them, and thereupon insist that they were entitled to recover from the appellant his share of the contract price. The authorities are very clear on this point. Bishop Cont. §§ 837-841; Danforth v. Walker, 37 Vt. 239, 40 Vt. 257; Moline Co. v. Beed, 52 Iowa 307, 3 N. W. Rep. 96; City of Nebraska v. Coke Co., 9 Neb. 339, 2.N. W. Rep. 870; Clark v. Marsiglia, 1 Denio 317; Butler v. Butler, 77 N. Y. 472. No damages for breach of the contract by the appellant were proved, nor was there any allegation of " guch damages. The action was upon the contract to recover the contract price, and not for damages for breach of it. For this vital error the judgment is reversed, and a new trial ordered. All concur.
ON REHEARING.
It is urged that Kadish vy. Young, 108 Ill. 170, and Roebling’s Sons’ Co. v. Fence Co., 22 N. K. Rep. 518, 130 Ill. 660; are conclusive in favor of the doctrine that one party to a contract cannot, by notice of his determination not to perform, given before the time to begin performance has arrived, create such a breach of the contract as will compel the other party, who does not assent to the breach, to treat the contract as then broken, and limit him to the recovery of such damages as are proper on the basis that the contract is then broken. These cases do sustain such a doctrine, and it is undoubtedly an elementary rule of law. The full scope of these and kindred decisions is that the person who has not broken his part of the compact may, at his option, extend to the person who has signified his purpose to violate the agreement, an opportunity for repentance, measured by the time to elapse between the refusal to perform and the date when performance is to commence. He may, and some cases hold that he must, treat the contract as subsisting, not for the purpose of performing it in the face of a persistent, unchangeable refusal of the other party to carry out, and then of recovering the full contract price, but for the purpose of insisting that such party shall, when the time of per-
