Mr. Justice Paxson
delivered the opinion of the court,
This action was commenced in the court below on the 29th day of November 1879, and was to recover about $1,500 for coke deliveredby the plaintiffs to the defendants during the. previous October. There was no serious dispute as to either the delivery of the coke or the amount; but the defendants set up as a defence the breach of a contract on the part of the plaintiffs for future deliveries of coke. To state sai’d contract briefly, the plaintiffs had agreed to sell and deliver to the defendants the entire product of their Eldorado works, comprising forty ovens, at a fixed price per ton, and also the product of all other ovens built by them during the continuance of the contract. This contract plainly appears by the correspondence between the parties, and was finally closed on November 11th 1879. On the 19th of the same month the plaintiffs notified the defendants in writing that they would not deliver the coke. On the 4th of December, four days after the delivery was to have commenced under the contract, the defendants wrote to the plaintiffs as follows: “We beg to draw your attention to contract between us by which you agree to furnish us the product of the Eldorado Coke works (forty ovens); also product of ovens that may be built during the continuance of the contract from December 1st 1879 to May 31st 1880, inclusive, and to advise you that we have been and are now prepared to receive the said coke under said contract. If shipments on our account are not at once commenced we will go into the market and buy an. equal amount of coke which you fail to deliver us, and will hold you responsible for any difference in price which we may have to pay, and will retain the balance which we now have in our hands to secure us against any loss or damage which we may sustain from your failure to comply with contract.” •
The defendants upon the trial below were allowed to set off their damages by reason of the breach of the above contract, and the jury found a verdict in their favor for $36,150. The single specification of error raises the question whether there was any breach at the time the suit was commenced.
A mere notice of an intended breach is not of itself a breach of the contract. It may become so if accepted and acted on by the other party. If the defendants had accepted the plaintiffs’ notice of breach contained in their letter of November 19th aud acted upon it, there would plainly have been a breach of the contract. The plaintiffs in such case could not have relieved themselves by commencing to deliver the coke on December 1st, but must have been held to all the legal consequences of the breach. The defendants, however, on December 4th, still insist upon compliance. They say i‘they are now prepared to receive said coke under said contract.” This certainly kept the contract alive as to both parties. The plaintiffs could have gone on and delivered the coke on December 4th, in which case there would have been no breach and no damages. The notice of an intention not to perform the contract, if not accepted by the other party as a present breach, remains only a matter of intention, and may be withdrawn at any time before the performance is in fact due : but if not in fact withdrawn it is evidence of; a continued intention to refuse performance down to and inclu-‘ sive of the time appointed for performance: Ripley v. McClure, 4 Ex. 345 ; Leake on the Law of Contracts. 873. The promisee may treat the notice of intention as inoperative and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance. But in that case he keeps the contract alive for the benefit of the other party as well as his own ; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it: Leake on Contracts, supra.
It follows from the foregoing principles that oh November 29th when the action was commenced below, there was no breach of the contract which the defendants could set up as a sel off to the plaintiffs’ claim. Nor does it help the defendants that when the cause was tried the breach was complete. The date of the commencement of the suit is the obvious test in such cases : Morrison v. Moreland, 15 S. & R. 61; Carpenter v. Butterfield, 3 Johns. Cases 144.
There was error in not affirming the plaintiffs’ eighth point. Judgment reversed and a venire facias de novo awarded.