Appellant wife must fail in her chief contention here that because of the alleged repudiation of respondent husband she is entitled to the total sum due on a property settlement agreement which provides only for monthly installment payments. Since the wife had fully performed her part of the agreement, and since the doctrine of anticipatory breach does not apply to a unilateral contract, the trial court correctly denied the wife's claim for the sum total due on the contract.
On September 25, 1957, appellant and respondent signed the contract upon which this action rests. This contract provides that, in consideration of appellant's waiver of any future claim to alimony, respondent will pay her $1,000 within 15 days, and a balance of $9,000 in monthly installments of $175 for a total of $10,000. The contract contains no acceleration clause to the effect that in the event of a default in payment the whole amount should become due. On the day of execution of the agreement appellant obtained an uncontested divorce from respondent; the trial court specifically found, however, that the contract "was not merged in the Decree of Divorce."
Appellant's complaint sets up a first cause of action upon the ground that the agreement provided for payment of the total sum in installments; that respondent refused to pay the first installment and paid only after a threatened levy of execution upon his place of business; that appellant obtained the December, 1957, payment by means of execution, and the January payment because of threatened contempt proceedings; that respondent repudiated the contract and refused to pay the installments due. The second cause of action, incorporating these allegations of the first, and further alleging that respondent threatened to dispose of his property and leave the state, sought injunctive relief against such disposition. The complaint did not request judgment for two installments delinquent at the time of filing suit.
At the trial appellant testified that immediately after she obtained the divorce, respondent renounced his obligation under this contract; appellant's brother corroborated this repudiation. Appellant also testified that respondent failed to make the initial $1,000 payment and the first installment of $175 within the agreed time; that, upon her questioning him on a number of occasions about these defaults, respondent replied that he was not going to pay her. And, indeed, respondent had made no payments after the commencement of this action (April 16, 1958) to the time of the trial (April 1,
Denying his wife's allegations that he intended to dishonor the contract, to dispose of his property or to leave the state, respondent admitted he had failed to make several payments under the agreement, contending that the failures were due to his "dire financial straits." In holding appellant "take nothing by reason of her complaint" the trial court found "that the doctrine of anticipatory breach does not apply to the contract in question before the Court," and neither rendered findings on issues which it considered immaterial in view of its ruling on anticipatory breach nor accepted appellant's proposed findings upon such breach. The court likewise refused the requested relief as to appellant's claim to payments due at the time of trial and as to an injunction.
We consider, first, the issue as to the findings and the alleged anticipatory breach; second, the failure to give relief as to amounts allegedly due and unpaid at the time of trial.
The issue as to the findings is inseparable from that of the anticipatory breach.
Appellant cites cases which do not involve the exact situation of anticipatory breach of a unilateral contract, and she relies upon authorities which question the theory above stated. We shall consider both points; we turn first to the cases.
In Guitron v. Rodriguez (1930), 105 Cal.App. 513 [288 P. 134], cited by appellant, defendant entered into an oral contract for the purchase of a grocery store, promising to pay $3,700: $1,000 down and the balance in installments of $150 per month. Having made the initial payment, defendant took possession, then repudiated the contract, and refused to make any further payments. The District Court of Appeal held that plaintiffs could recover damages based on future as well as presently due payments since "... the repudiation of an executory contract [emphasis added] results in a violation of the contract `in omnibus.'" Ibid., page 514. The court neither discussed the fact that the contract, having been fully performed on one side, became unilateral, nor the effect of such performance on the applicability of the doctrine of anticipatory breach; instead, it assumed the contract to be bilateral.
Pollack v. Pollack (Tex. Com. App., 1931), 39 S.W.2d 853, appellant's next cited case, characterized by Williston as "extreme" (5 Williston on Contracts, 1330B, p. 3743) applies to the instant situation only by way of dicta, and the dicta, indeed, is not persuasive. In overruling a second motion for rehearing (Pollack v. Pollack (1932), 46 S.W.2d 292, 293), the court construes the contract as executory on both sides rather than as performed. The court further declares that, even assuming plaintiff's full performance, the doctrine of
In support of Pollack v. Pollack (1931), supra, appellant cites Pierce v. Tennessee C.I. & R. Co. (1898), 173 U.S. 1 [19 S.Ct. 335, 43 L.Ed. 591]; Roehm v. Horst (1899), 178 U.S. 1 [20 S.Ct. 780, 44 L.Ed. 953], and Parker v. Russell (1882), 133 Mass. 74. In Pierce the contract in issue was executory on both sides. Such was also the situation in Roehm, although there several executory contracts, rather than one agreement, were in issue. Indeed, Chief Justice Fuller states, "In the case of an ordinary money contract, such as a promissory note, or a bond, the consideration has passed; there are no mutual obligations; and cases of that sort do not fall within the reason of the rule [of anticipatory breach]." (P. 17.) Assuming that the early Parker case expresses the Massachusetts rule, it is no more applicable in California than the previously discussed Pierce and Roehm cases.
Appellant's citation of comment (a), section 316, volume 1, Restatement of Contracts, succumbs to the section to which it is appended. The section states that "Where a unilateral contract, or a bilateral contract that has been wholly performed on one side, is for the payment of money in instalments or for the performance of other acts, not connected with one another by a condition having reference to more than one of them or otherwise, a breach as to any number less than the whole of such instalments or acts is partial." The comment elaborates upon the exception as to either installments or acts which are not connected by a condition relating to the remaining acts or installments; indeed it points out that the "... acts in such a series are more likely to be connected with one another than instalments of money." (Emphasis added.) Appellant cannot rely upon the Restatement as authority for the proposition that an anticipatory breach of contract is total in the instant case, in which "acts" are not involved but only "instalments," which are themselves not interrelated.
In the instant case we have a converse situation. The main objective of the contract is not frustrated by the repudiation; the payment of the amount due upon the fixed dates fulfills its underlying purpose. The payments are separable and divisible. The default in one, even though concomitant with a renunciation of the whole contract, does not preclude performance of the remainder. The series of acts are not so connected that the omission of one affects the totality; the purpose of the covenant may be achieved even though a single payment may fail.
Professor Corbin has severely criticized the nonapplicability of the anticipatory breach doctrine to a contract which the complaining party has fully performed (4 Corbin on Contracts, § 962 ff, p. 864 ff). The rationale for the orthodox position resides in the fact that the party who has fully performed need only await counterperformance; he is entitled to no more than such performance upon the future dates to which he has agreed. On the other hand, the party who has not yet performed must be ready to, or actually, undertake, further performance. To call upon him to do so in the face of a repudiation of the other contracting party may cause him unmerited hardship. Hence his claim for immediate total performance is greater than that of his dormant counterpart who has fully performed. But the dissenting critics point out that to gain a rather tenuous "logical consistency," we incongruously award judgment for future installments to the party who has not yet performed, and deny such judgment to the party who has fully performed.
Whatever the theoretical considerations may be, the courts, as we have shown supra, have not applied the doctrine of anticipatory breach, which is itself a judicial innovation in the preexisting rules of the common law, to the breach of unilateral contracts or agreements fully performed by the complaining party. (1 Witkin, Summary of California Law, § 302; 5 Williston on Contracts, § 1328.) That the judicial journey of improvisation should not have stopped at the point of the bilateral agreement, but should have proceeded to the unilateral agreement and to the bilateral contract fully performed on one side, may be argued persuasively; California law, however, has marked the stopping place, and we accept it.
Appellant finally contends that even assuming the inapplicability of the doctrine of anticipatory breach, she should at least recover judgment for the two installments admittedly due at the date of the filing of the complaint, as well as for the payments which accumulated to the date of trial, April 1, 1959.
As to the claim for the installments accrued and unpaid at the date of trial, we do not believe the rules of procedure should be so narrowly applied as to preclude such relief.
In conclusion upon the main issue, we hold that the total recovery sought here is foreclosed by the embedded rule that the doctrine of anticipatory breach does not apply to an installment
We affirm the judgment in all respects except as to installments due and unpaid at the date of trial; with respect to such installments, we reverse the judgment and direct the trial court to determine the amount of installments due and unpaid, at the date of trial and to render judgment to appellant for such amount. Appellant shall recover costs on appeal.
Bray, P.J., and Duniway, J., concurred.