(after stating the facts as above). It must be borne in mind that on June 22 the appellant had advised the appellee that the Cacique would be ready for loading on June 27, and that the loading was to commence on that date and be completed not later than June 29. The court below held that the contract required that the cargo must be loaded in the month of June, 1916, that there had been no actual breach of the contract by the appellee at the time when the suit was commenced, that there had been no breach of the contract by the appellee in anticipation of the time of performance, and that the appellant could not proceed in rem against a portion of the cargo that had been delivered and received as freight and at the same time prosecute its libel on the theory of an anticipatory breach.

[1] The appellant contends that there was an actual breach of the contract by the appellee. We think the contention cannot be sustained. On June 27 the appellee had in San Francisco for shipment on the Cacique 4,650 tons of automobiles, and when the vessel finally did sail, in late July, these automobiles were conveyed on the steamer. It is true that the appellee had failed to deliver the full cargo of 6,200 tons as contracted for, but the full performance of the appellee’s obligation. was not due at the time when the suit was commenced. The ap-pellee had until and including June 29 in which to furnish the cargo. The notice required that loading must begin on June 27 and be completed not later than June 29. There were appellee’s goods on band with which to begin on June 27. The appellee could not be in default at the time when the suit was commenced. The evidence is undisputed that during the 27th, 28th, and 29th the appellant could not possibly have loaded any cargo. She had arrived on the 27th with a cargo of 7,900 tons, which she did not unload until the afternoon of July 8, and thereafter she was ordered into dry dock by Lloyd’s surveyor, and she was not seaworthy or in condition to take on cargo for the appellee until after July 12.

[2] But the appellant contends that the contract did not call for June loading; that the term “June loading” was not intended to mean *958loading in the month of June, but as soon as was feasible or convenient after the expected return of the Cacique from her voyage to Oriental ports. The preliminary .correspondence between the parties clearly indicates that the appellee was looking for transportation of its goods in early June, and that it assented to a contract which provided for June loading. The authority of Davis to engage space was expressly limited, as the appellant well knew, for not later than a June sailing. The appellant drew the contract, and inserted the words “for June loading,” •a phrase used evidently as equivalent to June sailing, and we do not see how it' can be held to mean anything other than its plain terms import. Gray v. Moore (C. C.) 37 Fed. 266; Davison v. Von Lingen, 113 U. S. 40, 5 Sup. Ct. 346, 28 L. Ed. 885; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366.

The appellant finds in some of the correspondence expressions which at first glance give color to its contention that the contracting parties had in contemplation a possible delay in loading until early in July. Thus, on June 13, Mr. Davis wrote to the appellee, referring to the delay of the Cacique, and saying:

“It is now our hope that she will even be as late.as the 10th of July, as we wired' recently. * * * We sincerely hope that you will be able to fill the space with your own cars, rather than let it go to another concern for a lower figure.”

The inference to be drawn from the letter is that the writer hoped that the delay of the Cacique would relieve the appellee from liability for damages for its failure so far to furnish the whole cargo it had contracted to furnish, and very probably he had in view, in the event of such delay, the possibility of making up the shortage of the cargo so as fully to comply with the contract. We see nothing in the correspondence to indicate that the court below did not properly construe the contract as calling for a loading before the expiration of the month of June.

[3] But the appellant contends, and it alleged in its libel, that there was an anticipatory breach of the contract, in that the appellee in writing expressly refused to perform the same. The letter of the appellee of June 24, stating that 4,075 tons is' the appellee’s entire cargo for the steamer, and announcing the appellee’s purpose to withhold loading of that cargo if the libelant intends to hold the same for the full freight of 6,200 tons, was not a renunciation of the contract, or the expression of a purpose to breach the same, and it was not accepted as such. The answer to that letter states that the appellant stands “strictly upon the contract,” that it was ready to perform the contract, and was ready to accept such quantity of automobiles as might be delivered, that it would hold the appellee responsible for all damages,- including de-murrage, and that the appellant would not accept such smaller quantity as satisfaction of the contract, but only as the partial satisfaction “which it in fact is.” The law applicable to the question of anticipatory breach is clear and well settled. in 6 R. C. L. 1025, it is said:

“In order to justify the adverse party in treating the renunciation as a breach, the refusal to perform must be of the' whole contract, or of a covenant going to the whole consideration, and must be distinct, unequivocal, and *959absolute. * * * The renunciation itself does not ipso facto constitute a breach. It is not a breach of the contract, unless it is treated as such by the adverse party.”

Among the authorities which apply that rule are Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 29 L. Ed. 984; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; Smoots Case, 15 Wall. 36, 21 L. Ed. 107; Wells v. Hartford Manilla Co., 76 Conn. 27, 55 Atl. 599.

9[4] The appellant argues that under the equitable practice in admiralty the libel should be sustained, even though it were prematurely brought, and that the appellant should be permitted to amend its pleading; but there is no suggestion that other evidence on the merits of the case may be adduced in addition to what is contained in the record. The difficulty which confronts the appellant is not a defect in its pleading, but the nature of the facts which have been disclosed. Obviously every fact relating to the merits of the controversy is before the court. The appellant cannot recover damages for an, anticipatory breach, for the reason that the appellee did not renounce the contract, and the appellant did not accept the appellee’s communication as a renunciation, but by its own words and conduct recognized the continuing existence of the contract. The appellant cannot recover for an actual breach of the contract, for the reason that no breach had occurred when the suit was brought. Nor does it appear from the facts disclosed that at any time the appellant had a cause, of action for breach of the contract, since the evidence indicated its own failure to perform.

The decree is affirmed.