Id. In Hoyt v. Horst, 105 N.H. 380 (1964), we explained our view of the anticipatory breach doctrine. In Hoyt, the defendants' business associate took a loan from the plaintiff.

This principle has been recognized and adopted by the New Hampshire Supreme Court. See Hoyt v. Horst, 105 N.H. 380, 386, 201 A.2d 118, 122 (1964). In this diversity action, the Court is bound by the law of the forum state.

Fraud must be proven by clear and convincing evidence. See Snow v. American Morgan Horse Assoc. Inc., 141 N.H. 467, 468, 686 A.2d 1168 (1996) (fraudulent misrepresentation); Chagnon Lumber Co. v. DeMulder, 121 N.H. 173, 176, 427 A.2d 48 (1981) (context of New Hampshire Revised Statutes Annotated ("RSA") ch. 545) (repealed 1987, effective Jan. 1, 1988); Jenney v. Vining, 120 N.H. 377, 381, 415 A.2d 681 (1980) (clear and convincing evidence required to show "existence of fraud or actual fraudulent intent") (context of then extant RSA ch. 545); Hoyt v. Horst, 105 N.H. 380, 390, 201 A.2d 118 (1964) ("Fraud is never to be presumed, but must be established by clear and convincing proof."); see also, Loyal Cheese Co. v. Wood County Nat'l Bank and Trust Co., 969 F.2d 515, 518 (7th Cir. 1992) Wis. Fraudulent Conveyance Act, insolvency provisions); Benson v. Richardson, 537 N.W.2d 748, 758 (Iowa 1995) (Iowa common law); Territorial Sav. Loan Assoc. v. Baird, 781 P.2d 452, 458 (Utah Ct.App. 1989) (Utah Fraudulent Conveyance Act) (clear and satisfactory standard context of insolvency provisions); Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 360, 701 P.2d 851 (Ct.App. 1980) (Arizona Uniform Fraudulent Conveyance Act); Furniture Mfrs. Sales, Inc. v. Deamer, 680 P.2d 398, 399 (Utah 1984); FDIC v. Proia, 663 A.2d 1252, 1254 n. 2 (1995) (Maine Uniform Fraudulent Transfer Act) (Act does not change clear and convincing burden of proof). Cf.

The Credit Union argues that the exclusion of "money contracts" from the anticipatory breach doctrine is outdated, now that money, like other commodities, has market value which may vary. There is some authority for plaintiff's position in the decisions of other jurisdictions. In Hoyt v. Horst, 105 N.H. 380, 201 A.2d 118 (1964), for example, the court allowed plaintiff to bring an action for the entire amount of a loan that had not yet all become due under circumstances where "[t]here was not the slightest indication that any further installments would ever be received by the plaintiff." 105 N.H. at 389, 201 A.2d at 124.

Again, the circumstances surrounding the September 30 agreement and the practical construction given to it by the parties furnishes substantial evidence that the defendant Sarah Morris' claim is unsound. Bogosian v. Fine, 99 N.H. 340; Hoyt v. Horst, 105 N.H. 380, 385. The September 30 agreement was executed only nineteen days alter the probate of Sara's will. The parties may be presumed to have realized that at least some of Sara's stocks would have to be sold to satisfy the obligations of the estate, and this would have been so had not the decedent William advanced nearly $7,000 of his own money to satisfy these obligations.

The case law makes it clear that it is not necessary to prove fraudulent conveyances by direct evidence, circumstantial evidence being sufficient. Kelley v. Simoutis, 91 N.H. 407, 20 A.2d 628 (1941); Ricker v. Matthews, 94 N.H. 313, 53 A.2d 196 (1947); Hoyt v. Horst, 105 N.H. 380, 201 A.2d 118 (1964). Since this was a directed verdict at the close of the plaintiff's case, we must view "the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff."

Maryland Cas. Co. v. W.R. Grace Co., 1996 WL 306372 at *1 (S.D.N.Y. June 7, 1996) (citations and internal punctuation omitted). See also LeTarte v. W. Side Dev. Group, LLC, 151 N.H. 291 (2004); Hoyt v. Horst, 105 N.H. 380 (1964). As for Enterasys' breach of contract claim, it is unclear what Enterasys believes it is entitled to that Clarendon has refused to provide.

See, e.g., Sagamore Corp. v. Willcutt, 180 A. 464 (Conn. 1935); Hoyt v. Horst, 201 A.2d 118 (N.H. 1964). In response, Defendants argue no Minnesota authority exists for the proposition that anticipatory repudiation of a lease entitles a lessor to future damages.

I regard it as very unlikely that the California Supreme Court would diverge from Fox and the general common law rule.See, e.g., LeTarte v. West Side Development, LLC, 151 N.H. 291, 855 A.2d 505 (2004) ( citing 9 A. Corbin, Corbin on Contracts § 956 (2002); Hoyt v. Horst, 105 N.H. 380, 201 A.2d 118 (1964)) ( citing Corbin for proposition that “successive breaches of a continuing contract, while generally viewed as a series of partial breaches, can result in a total breach when there is a repudiation or a material failure of performance” and citing an earlier New Hampshire Supreme Court case finding total breach of contract where defendants failed to make further payments on a contract and it was clear that they would never pay further installments); Central States, Southeast and Southwest Areas Pension Fund, No. 91–C–824, 1993 WL 303128, at *3 (N.D.Ill. Aug.9, 1993) ( citing 9 A. Corbin, Corbin on Contracts § 956; Alaska Laborers, 812 F.2d at 517) (finding no repudiation of contract but acknowledging that if contract had been repudiated, statute of limitations would have run for the entire contract).

In a prior case, also involving an installment contract, we found that the defendants' failure to make payments "after the initial installments" constituted a "material failure to perform" and, therefore, a "total breach" of the contract. Id. at 294, 295, 855 A.2d 505 ; see Hoyt v. Horst, 105 N.H. 380, 389, 201 A.2d 118 (1964). However, this court has yet to address whether, if the non-breaching party elects not to sue within three years of the other party's anticipatory breach or repudiation, the non-breaching party's lawsuit is barred by the statute of limitations.