cases which hold in general terms that any words by which a person suffers a special damage are actionable will show that the words were in fact defamatory. See Moore v. Meagner, 1 Taunt. 39. "No general rule can be laid down," as said by Mr. Odgers in his valuable work on Libel and Slander,"stating absolutely and beforehand what words are defamatory and what are not." "Words which would seriously injure A's reputation might do B's no harm." "Each case must be decided on its own facts." We think it may be safely said that any words, if false and malicious, imputing conduct which injuriously affects a man's reputation, or which tends to degrade him in society, or bring him into public hatred and contempt, are in their na ture defamatory, and either actionable per se or may be made actionable by proper innuendoes, or by alleging and proving special damage, and that words which are not in their nature defamatory, while perhaps, if false and malicious, and if used by a person who knows, or ought to know, that special damage will follow, and such damage does in fact follow, an action on the case may be maintained, whatever the nature of the words (Odgers, supra, 88.91; Young v. McRae, 3 Best & S. 264; Lynch v. Knight, 9 H. L. Cas. 589), yet cannot be made the basis of an action for libel or slander.

RECENT PHASES OF CONTRACT LAW.III. BREACH BY RENUNCIATION BEFORE PERFORMANCE.

The parties to an executory contract have a right to something more than that it shall be performed when the time arrives; they have a right to the maintenance of the contractual relation up to that time, as well as to the performance of the contract when due, and if one of the parties renounces it before that time, the other is entitled to sue at once for the breach. In the leading English case,2 the court based the doctrine on the ground that, "where there is a contract to do an act on a future day, there is a relation constituted between the parties in the meantime by the contract, and they impliedly promise that in the meantime neither will do anything to the prejudice of the other inconsistent with that relation." In a later case, Cockburn, C. J. stated a different reason for the rule, as follows: "The promisee has an inchoate right to the performance of the bargain which becomes complete when the time. for performance has arrived. In the mean

1 Lawson Contr., § 440 and cases cited; Windmuller v. Pope, 107 N. Y. 674; Kurtz v. Frank, 76 Ind. 594; Kennedy v. Rodgers (Kas.), 44 Pac. Rep. 47; Davis v. Grand Rapids Co. (W. Va.), 24 S. E. Rep. 630. This is the law of England and of all the States except Massachusetts. Daniels v. Norton, 114 Mass. 530, 19 Am. Rep. 384.

2 Hochster v. Delatour, 2 El. & Bl. 678. Frost v. Knight, L. R. 7 Ex. 114.

time he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his interests." Anson endorses the latter reasoning because "it would seem needless to imply a promise in order to give the plaintiff a right of action. A contract is a contract from the time it is made, and not from the time that performance of it is due; if this is so, it is needless and clumsy to introduce into every contract an implied promise that, up to a certain period of its existence, it shall not be broken."4

The leading cases illustrating the principle are where A engaged B to act as his courier, the employment to commence three months from that time, but two months before the service was due he notified B that he would not require his services," and where A promised to marry B upon his father's death, but during his father's life-time renounced the agreement. In both cases it was held that B might sue at once.

In the different text books four qualifications or limitations to this rule are stated, viz. : 1. The renunciation must be distinct and unequivocal; a mere expression of intention not to perform is not enough." "No precise form of words was necessary * the obligation of the contract being created a denial of its existence was equivalent to a refusal to allow her to enter upon the service. *** The sole inquiry is whether he has done an act inconsistent with the supposition that the service continues."'s

2. The renunciation must cover the entire performance to which the contract binds the promisor." Thus where a landlord covenanted to repair the premises at a certain. period of the tenancy, and before that period arrived he repudiated the covenant, and the tenant at once claimed damages for the breach, it was held that the contract was the whole lease and that the anticipatory breach

4 Anson Contr. 291.

5 Hochester v. Delatour, El. & Bl. 678.

8 Frost v. Knight, L. R. 7 Ex. 114; Kurtz v. Frank, 76 Ind. 594, 40 Am. Rep, 275; Burtis v. Thompson, 42 N. Y. 246, 1 Am. Rep. 516.

7 Lawson Contr., § 440 and cases cited; Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Zuch v. MeClure, 98 Pa. St. 511; Vittum v. Estey (Vt.), 31 Atl. Rep. 144; Kilgore v. Baptist Church (Tex.), 37 S. W. Rep. 473, 898.

8 Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716. 9 Anson Contr., § 291; Lawson Contr., § 440.

of a particular covenant in it did not entitle the tenant to sue." 10

3. The contract must not be a unilateral one. A man, for example, may say to the holder of his note, "I am not going to pay it when it is due," but until payment is refused when it falls due, no legal right of the holder has been violated by the maker."'"

4. If the promisee elects not to accept the renunciation, and continues to insist on the performance of the promise, the contract remains in existence for the benefit and at the risk of both parties, and if anything occur to discharge it from other causes, the promisor may take advantage of such discharge.12

Thus in Avery v. Bowden,13 A agreed with B by charter-party that his ship should sail to Odessa, and there take a cargo from B's agent, which was to be loaded within a certain number of days. The vessel reached Odessa, and her master demanded a cargo, but B's agent refused to supply one. Although the days within which A was entitled to load the cargo had not expired, his agent, the master of the ship, might have treated this refusal as a breach of contract and sailed away. A would then have had a right to sue upon the contract. But the master of the ship continued to demand a cargo, and before the running days were out therefore a breach by non-performance had occurred a war broke out between England and Russia, and the performance of the contract became legally impossible. Afterwards A sued for breach of the charter-party, but it was held that as there had been no actual failure of performance before the war broke out (for the running days had not then expired), and as the agent bad not accepted the renunciation as a breach, B was entitled to the discharge of the contract which took place upon the declaration of war.

before

To these limitations I venture to add the following:

5. The repudiating party cannot force the other, nor is the other bound, to sue for a breach of the contract before the day fixed for performance arrives, and have the damages assessed as of the time of the repudiation. The party keeping the contract, in

10 Id.

11 Lawson Contr., § 440.

12 Lawson Contr., § 440; Anson Contr., § 290. 18 5 El. & Bl. 714.

other words, need not mitigate the damages by treating as final the premature repudiation.14 Thus in an Illinois case,15 the plaint

iffs in December 15, 1880, sold to the defendants to be delivered to them during the month of January, 1881, 100,000, bushels of barley. On the 16th, the day after the sale, the defendants notified plaintiffs that they did not consider themselves bound by the contract, and that they would not carry it out. It was held that the plaintiffs had a right, notwithstanding such notice to wait until the day of delivery under the contract arrived, and then resell it in the market and recover from the defendants the difference between the contract price of the barley and its market price at the day it was to have been delivered. And that there was no duty upon the plaintiff to sell the barley on the day of or a reasonable time after the notice, although by a sale at such time the damages would have been greatly reduced, barley having gone down in price in the meantime.

6. But after notice of such repudiation the other party cannot go on and complete an executory contract, and then sue for the full contract price or for any increased damages caused by his continuing to perform.16 In a Vermont case, 17 the defendant agreed to purchase of the plaintiffs five car loads of potatoes to be delivered as called for by him. After the first car load was received, potatoes fell in price in the market and the defendant thereupon wrote to the plaintiffs not to purchase any more until they should hear from him. It was held that after they received this notice they had no right to purchase on the plaintiffs' account any more potatoes. "While a contract is executory," said the court, "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 his part at that point or stage in the execution of the contract. The party thus forbidden cannot afterwards go on and in

14 Kadish v. Young, 108 Ill. 170, 48 Am. Rep. 548; Davis v. Bronson (N. D.), 50 N. W. Rep. 836. 15 Kadish v. Young, supra.

16 Butler v. Butler, 77 N. Y. 472, 33 Am. Rep. 648; Davis v. Bronson (N. D.), 50 N. W. Rep. 836 Moline c. v. Beed (Ia.), 3 N. W. Rep. 96; City of Nebraska v. Coke Co. (Neb.), 2 N. W. Rep. 870.

17 Danforth v. Walker 37 Vt. 239, 40 Vt, 457.

crease the damages and then recover such increased damages of the other party.'

This principle has been applied in several cases to contracts of employment-the rule being that an employer may order the discontinuance of work which he has contracted with or employed another to perform, subject to proper compensation in damages to the employee; but that the latter cannot then go on with the work and recover the contract price.18 In New York, 19 the defendant employed the plaintiff to clean and repair certain pictures for an agreed price, but before the work was completed countermanded the order. The plaintiff, however, went on and finished the work and sued for the price agreed upon, claiming that the defendant could not countermand the order after the work was begun. He recovered judgment which was reversed on appeal, the court saying: "The plaintiff was allowed to recover as though there had been no countermand of the order and in this the court erred. The defendant by requiring the plaintiff to stop work upon the paintings, violated his contract and thereby incurred a liability to pay such damages as the plaintiff should sustain. Such damages would include a recompense for the labor done and materials used, and such further sum in damages as might, upon legal principles, be assessed for the breach of the contract; but the plaintiff had no right, by obstinately persisting in the work to make the penalty upon the defendant greater than it would otherwise have been. To hold that one who employs another to do a piece of work is bound to suffer it to be done at all events would sometimes lead to great injustice. A man may hire another to labor for a year, and within the year the situation may be such as to render the work entirely useless to him. The party employed cannot persist in working, though he is entitled to the damages consequent upon his disappointment. So if one hires another to build a house, and subsequent events put it out of his power to pay for it, it is commendable for him to stop the work and pay for what has been done and the damages sustained by the contractor. He may be under a necessity to change his

18 Davis v. Bronson (N. D.), 50 N. W. Rep. 836; Owen v. Frank, 24 Cal. 178; Lord v. Thomas, 64 N. Y. 119; Dillon v. Anderson, 43 N. Y. 232; Butler v. Butler, 77 N. Y. 472, 33 Am. Rep. 648.

19 Clark v. Marsiglia, 1 Denio, 317 43 Am. Dec. 670.

residence, but upon the rule contended for, he would be obliged to have a house which he did not need and could not use. In all such cases the just claims of the party employed are satisfied, when he is fully recompensed for his part performance and indemnity for his loss in respect to the part left unexecuted."

7. The rule in (6) has been held not to apply where the damages are not an adequate remedy for the breach, i. e., where the contract is a proper one for specific performance. The plaintiff had agreed in writing with the defendant to support and maintain the father of the defendants during his natural life for a specified sum per week; but after performance had commenced they notified him not to continue performing his agreement as they would make no further payments. The plaintiff, nevertheless continued to furnish the maintenance, and in an action to recover the weekly payments after the notice it was held that the renunciation by the defendant was no defense.20

8. An absolute promise to pay a certain sum of money on the performance of a condition, such as a promise to pay a subscription to some projected undertaking-cannot be withdrawn by the promisor so as to force the promisee to cease performance. Thus in Buchel v. Lott,21 the defendant with others signed a subscription list intended as a bonus to a company to construct a certain line of railroad within a certain time. It was held that the defendant could not withdraw his subscription, the court saying: "He became bound upon said contract the moment he signed it for the amount subscribed by him, subject only to the condition that the railroad should be constructed according to the contract."'22 JOHN D. LAWSON.

University of Missouri.

20 Marsh v. Blackman, 50 Barb. 333. In Watson v. Smith, 7 Oregon, 448, an agreement to support was held a proper one of which to decree specific perform

ance.

21 15 S. W. Rep. 413. See Davis v. Bronson, 50 N. W. Rep. 836.

22 This view of the case would not obtain, however, in those jurisdictions where a subscription is held to be without consideration until the party for whose benefit it is made has done something-made contracts or incurred obligations for example-on the faith of such subscription, and that until such time the promisor has a right to withdraw his subscription. See Lawson Contr., § 96.

ADULTERATION-CRIMINAL INTENT.

PEOPLE v. SNOWBURGER.

Supreme Court of Michigan, May 25, 1897. When the statute makes it a criminal offense to offer for sale any adulterated food, it is immaterial that the seller is ignorant of such adulteration.

LONG, C. J.: Respondent was convicted under an information charging that "on the 19th day of April, A. D. 1897, at the city of Monroe, and in the county aforesaid, Michael Snowburger did offer for sale, and sell, to Carl Franke, an adulterated article of food, to-wit, a quantity of mustard, to-wit, a quarter of a pound, colored and adulterated with tumeric, whereby the said mustard, as an article of food, was damaged, and its inferiority concealed, and whereby it was made to appear of better and of greater value than it really was, the same not being a mixture or compound recognized as ordinary articles or ingredients of articles of food, contrary to the form of the statute in such case made and provided," etc. The information was filed under Act No. 193, Pub. Acts 1895, entitled "An act to prohibit and prevent adulteration, fraud and deception in the manufacture and sale of articles of food and drink." Section 1 provides: "No person shall within this State manufacture for sale, offer for sale or sell any article of food which is adulterated within the meaning of this act." Section 2: "The term 'food,' as used herein, shall include all articles used for food or drink or intended to be eaten or drunk by man, whether simple, mixed or compound." Section 3: "An article shall be deemed to be adulterated within the meaning of this act: One, if any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect its quality, strength or purity; two, if any inferior or cheaper substance or substances have been substituted wholly or in part for it; three, if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it; four, if it is sold under the name of another article; five, if it consists wholly or in part of a diseased, decomposed, putrid, infected, tainted or rotten animal or vegetable substance or article, whether manufactured or not, or, in case of milk, if it is the product of a diseased animal; six, if it is colored, coated, polished or powdered whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; seven, if it contains an added substance or ingredient which is poisonous or injurious to health; provided, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, and are not injurious to health." Section 19 makes any violation of the act a misdemeanor, and provides a penalty by a fine of not less than $100 nor more than $500, or

by imprisonment in the county jail, etc. On the trial, respondent admitted that on the 19th day of April, 1897, he, at the city of Monroe, this State, offered for sale, and did sell, to Carl Franke, a quantity of mustard, to-wit, a quarter of a pound, which was afterwards found upon a chemical examination to be colored and adulterated with tumeric, whereby the said mustard as an article of food was damaged, and its inferiority concealed, and it was thereby made to appear of greater and better value than it really was; the same not being a mixture or compound recog nized as an ordinary article or ingredient of articles of food. But he claimed that said article of mustard so sold was purchased by him as a pure article in good faith, and that he believed at the time of the purchase by him, and also at the time of the sale to the said Franke, that the same was pure mustard, free from any coloring and adulteration with tumeric or any other coloring or adul terant, and that no inferiority was concealed whereby it was made to appear of greater or better value than it really was; that, at the time he purchased the same, he asked for pure mustard, and that the same was warranted to him as pure: that he did not make or cause to have made a chemical examination of the same, and did not inform himself or endeavor to ascertain the methods of determining pure from impure mustards, but relied upon the representations of his vendor and the appearance of the article to the eye; and that he did rot intend to violate the law. From such conviction, respondent appeals.

It is the contention of counsel for respondent that it was the intent of the legislature to provide by the act that no person should be convicted and punished for selling adul terated food or drink without showing that he knew the same to be adulterated; that the information does not charge such knowledge, and the proofs disclose that respondent acted in good faith, and in the belief that the article sold was pure and unadulterated. The act cannot be 80 construed. The offense under the act consists in selling an article intended to be eaten or drunk which is adulterated. Section 8 of the act shows conclusively that the legislature did not intend to make criminal intent or guilty knowledge a neeessary ingredient of the offense. As a rule, there can be no crime without a criminal intent, but this rule is not universal. In People v. Roby, 52 Mich. 577, 18 N. W. Rep. 365, the respondent was convicted of the offense, under the statute, of keeping his saloon open on Sunday. It was there said: It is contended that, to constitute an of fense under the section referred to (How. Ann. St. § 2274), there must be some evidence tending to show an intent on the part of the respondent The action under which Roby is prosecuted makes the crime consist, not in the affirmative act of any person, but in the negative conduct of failing to keep the saloon closed. As a rule, there can be no crime without a criminal intent; but this is not by any means

to violate it.