ILLUSTRATIONS. -A agrees to provide a ship with a cargo of guano at a certain port. It is no defense that A finds it im Trustees v. Bennett, 27 N. J. L. 513; 72 Am. Dec. 373; Dermott v. Jones, 2 Wall. 1; Bunnby v. Smith, 3 Ala., N. S., 123; Stephens v. Vaughan, 4 J. J. Marsh. 206; 20 Am. Dec. 216; Singleton v. Carroll, 6 J. J. Marsh. 527; 22 Am. Dec. 95; Wells v. Calnan, 107 Mass. 517; 9 Am. Rep. 65; Dist. Township v. Smith, 39 Iowa, 11; 18 Am. Rep. 39; Bacon v. Cobb, 45 Ill. 53; Schwartz v. Saunders, 46 Ill. 22; Cassidy v. Clark, 7 Ark. 131; Graves v. Berdau, 29 Barb. 101; Cobb v. Harmon, 29 Barb. 476; Kein v. Tupper, 43 How. Pr. 451; Van Buskirk v. Roberts, 31 N. Y. 675. In School District v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371, the court say: "We believe the law is well settled that if a person promises absolutely, without exception or qualification, that a certain thing shall be done by a given time, or that a certain event shall take place, and that the thing to be done or the event is neither impossible nor unlawful at the time of the promise, he is bound by his promise, unless the performance before that time becomes unlawful. Any seeming departure from this principle of law (and there are some instances that at first view appear to be of that character) will be found, we think, to grow out of the mode of construing the contract or affixing a condition, raised by implication from the nature of the subject, or from the situation of the parties, rather than from a denial of the principle itself; such, for instance, as a promise to marry, where it must be presumed that the parties agree to intermarry if they shall be alive; or a promise to deliver a certain horse at a future time, and before the day arrives the horse dies, in which case the parties are held to have contracted in view of that contingency. In these and like cases the court will hold that the parties did not understand that the thing was to be done, unless the life of the persons, or of the horse, was continued, so that there would be an object and an interest in the execution of the contract. These and a few other exceptions of a similar character are to be found in the books; but they are not so much ex ceptions, after all, as cases where the intention of the parties is presumed or inferred, though not expressed, from their peculiar situation, or from the subject-matter itself. It is said, however, that there is one real exception to the rule, viz., where the act of God intervenes to defeat the performance of the contract; and that is the exception on which the defendant relies in this case. The defendant insists that where the thing contracted to be done becomes impossible by the act of God, the contract is discharged. This is altogether a mistake. The cases show no such exception, though there is some semblance of it in a single case, which we will mention. The act of God will excuse the not doing of a thing where the law had created the duty, but never where it is created by the positive and absolute contract of the party. The reason of this distinction is obvious. The law never creates or imposes upon any one a duty to perform what God forbids, or what he renders impossible of performance, but it allows people to enter into contracts as they please, provided they do not violate the law. It is further said that the books declare that where the condition of a bond becomes impossible by the act of God, or is prohibited by the law, the condition becomes void, and the bond is absolute; or if it be a subsequent condition for the divesting of title, that the condi tion becomes void, and the title remains good. Whether even this is true without some qualification, we are not quite confident, nor will we stop to consider; but if so, still the doctrine of that class of cases does not reach the present one, as the same books abundantly declare. In Platt on Covenants, page 582, it is said that the rule laid down in Paradine v. Jane, Aleyn, 27, has often been recognized in courts as a sound one, viz., where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; therefore, if a lessee covenants to repair, the circumstance of the prem possible to obtain the guano: Hills v. Sughrue, 15 Mees. & W. 253. A ship-owner agrees to proceed to the port of lading by a certain date. He is not excused by the impossibility caused by contrary winds and bad weather, unless he has expressly excepted such events in the charter-party: Shubrick v. Salmond, 3 Burr. 1637. A agrees and covenants to pay rent for a house for a certain term. Before the end of the term the house is destroyed by fire. This does not discharge A: Hallett v. Wyle, 3 Johns. 44; 3 Am. Dec. 457. The rule is now generally different by statute. A person covenanted to build a bridge, and keep it in repair for a certain time. Held, that he was bound to rebuild the bridge, although it was broken down by an extraordinary flood: Brecknock Navigation v. Pritchard Co., 6 Term Rep. 750. A bond was conditioned for the building of a bridge on a certain site, and to maintain it for seven years. Held, valid, and the obligee liable for damages for a breach of the condition, although the maintenance of a bridge on the site was found to be impossible: Errington v. Aynesly, 2 Brown Ch. 341. An insurance company had undertaken, having the option to do so, to reinstate the insured premises, which had been damaged by fire. Held, not to be excused from their contract by reason of the public authorities having subsequently taken down the premises as dangerous, although on account of defects not caused by the fire: Brown v. Royal Ins. Co., 1 El. & E. 853; 28 L. J. Q. B. 275. A builder contracted to do certain specific works within a fixed time, including such alterations as might be ordered according to the contract, unless an extension of time were allowed for them, under penalties for delay. Held, that he was bound to complete within the time, or to pay the penalties; and it was held no excuse that alterations duly ordered without allowing an extension of time rendered performance impossible; nor could any condition be implied in variance of the contract for such a contingency: Jones v. St. John's College, L. R. 6 Q. B. 115. firm of which he is a member. ises being consumed by lightning, or thrown down by an inevitable flood of water or an irresistible tornado, will not effect his discharge. But where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him, as in the case of waste where the house is destroyed by a tempest. In some cases, where the act of God renders performance absolutely impos. sible, the covenants shall be discharged quia impotentia execusat legem, as, if a A contracts to take B into a It is no excuse for A's failure lessee covenants to leave a wood in as good plight as the wood was at the time of the lease, and afterwards the trees are blown down by tempest; or if one covenants to serve another for seven years, and he dies before the expiration of the seven years, the covenant is discharged, because the act of God defeats the possibility of performance. I should rather say, because it is implied that the thing shall exist or life be prolonged, or else the contract of course cannot be broken." that he cannot obtain the consent of the other partners: McNeil v. Reed, 9 Bing. 68. A agrees to build a house for B on his land. The house, before it is finished, is burned down. A is not discharged from his contract: Adams v. Nichols, 19 Pick. 275; 31 Am. Dec. 137; Fildew v. Besley, 42 Mich. 100; 36 Am. Rep. 433. A person agrees to deliver a specified quantity of corn "as early next fall as the same will be dry enough to house, unavoidable accidents only excepted." The crop fails on account of a drought. Held, no excuse for non-delivery: McGehee v. Hill, 4 Port. 170; 29 Am. Dec. 277. A contract is made to deliver corn within twenty days. Performance is not excused by the freezing on the eleventh day of a river on which it is being transported: Eugster v. West, 35 La. Ann. 119; 48 Am. Rep. 232. The plaintiff bound himself to winter a certain number of cattle for the defendant, and the defendant obligated himself to pay a stipulated sum for every head delivered in the spring "in good, thrifty order and condition." Held, that the plaintiff could not recover for the keeping of any cattle that died, or were not delivered in good, thrifty order and condition, although their death or bad condition might not have resulted from any want of care on his part: Stonam v. Waldo, 17 Mo. 489. § 2521. Exceptions But Promisor Discharged. where, from the nature of the contract, it is evident that the parties contracted on the basis of the continued existence of the person or thing to which it relates, the subsequent perishing of the person or thing will excuse the performance. Thus contracts to perform personal acts are considered as made on the implied condition that the party shall be alive or shall be capable of performing the contract.2 1 Dexter v. Norton, 47 N. Y. 62; 7 Am. Rep. 415; Singleton v. Carroll, 6 J. J. Marsh. 527; 22 Am. Dec. 95. 2 In an English case it is said: "There is a class of contracts in which a person binds himself to do something which requires to be performed by him in person; and such promises, e. g., promises to marry, or promises to serve for a certain time, are never in practice qualified by an express exception of the death of the party, and therefore in such cases the contract is in terms broken if the promisor dies before fulfillment. Yet it was very early deter mined that if the performance is personal, the executors are not liable. In those cases the only ground on which the parties or their executors can be excused from the consequence of the breach of the contract is, that, from the nature of the contract, there is an implied condition of the continued existence of the life of the contractor": Taylor v. Caldwell, 3 Best & S. 835; Knight v. Bean, 22 Me. 531; Spalding v. Rosa, 71 N. Y. 40; 27 Am. Rep. 7; Yerrington v. Greene, 7 R. I. 589; 84 Am. Dec. 578; Stewart v. Loring, 5 Allen, 306; 81 Am. Dec. 747. So where the contract relates to the use or possession or any dealing with specific things in which the performance necessarily depends on the existence of the particular thing, the condition is implied by the law that the impossibility arising from the perishing or destruction of the thing, without default in the party, shall excuse the performance, because, from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the subject of the contract.1 ILLUSTRATIONS.- An artist agrees to perform at a concert on a certain day. When the day arrives the singer is sick and unable to perform. Held, a good excuse: Robinson v. Davison, L. R. 6 Ex. 269. A agrees to pay B a certain sum for tuition during a certain term. During all the term A is ill. Held, that A is thereby discharged: Stewart v. Loring, 5 Allen, 306; 81 Am. Dec. 747. The defendants agreed with the plaintiffs, proprietors of a theater, to furnish the Wachtel Opera Troupe, to give a number of performances in their theater, the receipts to be divided in a specified manner. Wachtel, from whom the company took its name, and by whose name it was known, was the leader and chief attraction, and his connection with the company was the inducement that led the plaintiffs to make the agreement. Wachtel became unable to sing, in consequence of illness, and the defendants consequently did not furnish the troupe. In an action for breach of agreement, held, that Wachtel's appearance was the principal thing contracted for, and was of the essence of the contract; that plaintiff would not have been bound to accept the services of the company without him; and that his sickness and inability to sing constituted a good excuse for non-performance of the agreement: Spalding v. Rosa, 71 N. Y. 40; 27 Am. Rep. 7. An agreement was made for giving a series of concerts at a music-hall, by which one of the parties was to let the use of the hall for a stated daily payment, and to provide certain other requirements, and the other party was to provide the performers and to take the money. Before the time arrived the hall was accidentally destroyed by fire. Held, that the agreement was impliedly conditional upon the continued existence of the hall, and was put an end to by its destruction, and that no claim could be made under it for not letting the hall: Taylor v. Caldwell, 3 Best & S. 838. 1 Taylor ". Caldwell, 3 Best & S. 838; Dexter v. Norton, 47 N. Y. 62; 7 Am. Rep. 415; Walker v. Tucker, 70 Ill. 527; Lord v. Wheeler, 1 Gray, 282; Clark v. Franklin, 7 Leigh, 1; Greene v. Linton, 7 Port. 133; 31 Am. Dec. 707; Powell v. R. R. Co., 12 Or. 488. A contract was made for the construction and fitting of engines upon a ship then on a voyage, to be paid for by installments from time to time, according to the certified progress of the work. The work was commenced and payments made accordingly, but before the engines were completed ready for fitting, the ship was lost at sea. Held, that both parties were excused from further performance of the contract: Anglo-Egyptian Nav. Co. v. Rennie, L. R. 10 Com. P. 271. A covenant was made by a debtor with his creditor to pay the premiums on a policy of insurance effected with a certain insurance company. Held, to be impliedly conditional upon the continued existence of the company: Garniss v. Heinke, 40 L. J. Ch. 306. A company contracted to deliver from their mines a certain quantity of coal. At the date of entering into the contract they had the necessary facilities to enable them to comply with the contract, but before the time for delivery of a large portion of the coal, a flood swept away the means of transportation, so that the company could not fulfill their contract. Held, that they were excused from a compliance while they were thus prevented: Lovering v. Buck Mountain Coal Co., 54 Pa. St. 291. The defendant contracted with the plaintiff to build a bridge in accordance with certain plans and specifications, and bound himself to keep such bridge in repair for the term of three years. Held, that he was not liable to rebuild if the bridge was destroyed by fire: Livingston v. Graves, 32 Mo. 479. § 2522. Performance Rendered Impossible by Act of Promisor. Where a promise is rendered impossible by the act of the promisor, the contract is at once broken.' After a party has incapacitated himself from performing his contract, a demand of performance is not necessary to give a right of action.2 ILLUSTRATIONS.-An incoming tenant agreed to buy the straw upon a farm at a price to be fixed by valuation, and then consumed the straw before a valuation could be made, and so rendered it impossible. Held, that he was liable to pay the value, to be estimated by a jury: Clarke v. Westrope, 18 Com. B. 765. The sale of a business was made to be paid for by installments dependent in amount upon the profits. Held, to be an implied undertaking by the buyer to carry on the business, and that by discontinuing it so as to render it impossible to ascertain the 1 Cape Fear etc. Nav. Co. v. Wilcox, 7 Jones, 481; 78 Am. Dec. 260; Sut ton v. Tyrrell, 12 Vt. 79. 2 Smith v. Jordan, 13 Minn. 264; 97 Am. Dec. 232. |