Hochster v De La Tour [1853] EWHC QB J72; (1853) 2 E & B 678; 118 ER 922
A party faced with a clear refusal to perform a contract could sue for damages before the agreed performance date. The injured party had a choice whether to act on the refusal; the contract was not automatically brought to an end by the other party’s announcement.
Facts
In April 1852, De La Tour agreed to employ Hochster as a courier on a European tour starting on 1 June. The engagement was for three months at £10 per month.
On 11 May, De La Tour wrote that he had changed his mind and would not require Hochster’s services. He refused compensation. Hochster commenced proceedings on 22 May, before the intended start date. Before 1 June he found another engagement on equally good terms, but it would not begin until 4 July.
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Issue
De La Tour argued that no actionable breach could occur before 1 June. The question was whether Hochster had to remain ready to perform until that date, or could treat the earlier renunciation as a breach and sue immediately.
At trial, Erle J rejected the objection that the action was premature, while allowing the point to be raised again. The jury found for Hochster. De La Tour then sought a nonsuit or arrest of judgment on that ground.
Reasoning
Lord Campbell CJ, delivering the court’s judgment, rejected an absolute rule that an action must wait until the performance date. An agreement created a relationship between the parties immediately, even though the promised services were to begin later. A complete renunciation could breach that relationship.
The court distinguished an outright rejection of the contract from a passing intention which the speaker might reconsider. The allegation here was that De La Tour had wholly renounced his engagement.
Requiring Hochster to remain idle, prepare for an unwanted journey and refuse other work would serve neither party. He could instead accept the renunciation, treat himself as released from future performance and seek other employment, while retaining a damages claim. Earnings from replacement work could reduce his loss.
The court expressly recognised a choice: the injured party could sue immediately or wait until performance was due, treating the contract as prospectively binding. Difficulty in calculating loss was not a reason to prevent an early action. The jury could consider events that had occurred, or were likely to occur, affecting the loss.
Outcome
Judgment was given for Hochster. His claim was not premature merely because proceedings began before 1 June. The decision permitted an immediate damages action following the clear renunciation; it did not require Hochster to continue offering services which De La Tour had rejected.
Judgment: Queen’s Bench, 25 June 1853. Read the original report on BAILII.
