price, he had broken the contract: Telegraph Dispatch Co. v. McLean, L. R. 8 Ch. 658. Upon a contract for the whole produce of a dairy for the year, the seller delivered a part, and then informed the purchaser that he had sold the product for the rest of the year to another, and had delivered part thereof. Held, that the seller had disabled himself to perform his contract, and therefore that the buyer might recover damages without any offer of performance on his part: Crist v. Armour, 34 Barb. 378.

§ 2523. Performance Rendered Impossible by Act of Promisee. If the performance of a promise is rendered impossible by the act of the promisee, the performance is excused.1

ILLUSTRATIONS. A contractor agreed to do certain work within a certain time. The employer ordered a number of alterations which prevented completion within that time. Held, that the performance was excused: Westwood v. Secretary, 11 Week. Rep. 261. A publisher engaged an author to write a treatise for a periodical publication, and before completion of the treatise, abandoned the publication. Held, that the author was excused from further writing, as it had become impossible to publish it in the manner stipulated, and entitled to claim remuneration for the part already written: Planche v. Colburn, 8 Bing. 14. A person employed an attorney to defend him against a criminal prosecution, and gave him his note for his fee. The person committed suicide before the trial. Held, that the attorney could recover on the note: Mitcherson v. Dozier, 7

1 Marshall v. Craig, 1 Bibb, 379; 4 Am. Dec. 647; Kennedy v. Kennedy, 2 Bibb, 464; 5 Am. Dec. 629; Clement v. Clement, 8 N. H. 218; True v. Bryant, 32 N. H. 241; Black v. Woodrow, 39 Md. 194; Tone v. Doelger, 6 Robt. 251; Ashcroft v. Allen, 4 Ired. 96; Meyer v. Hallock, 2 Robt. 284; Hammer v. Breidenbach, 31 Me. 49; Dare v. Spencer, 3 Blackf. 491; Taylor v. Risby, 28 Hun, 141; Grice v. Noble, 59 Mich. 514. "It is a clear principle of law that if by any act of one of the parties the performance of a contract is rendered impossible, then the other side may, if they choose, rescind the contract; and it appears sufficient if the contract cannot be performed in the manner stipulated, though it may be performed in some other manner

not very different ": Panama Tel. Co. v. India Rubber Tel. Works, L. R. 10 Ch. 532; Majors v. Hickman, 2 Bibb, 218; Williams v. Bank of United States, 2 Pet. 102; Marshall v. Craig, 1 Bibb, 380; 4 Am. Dec. 647; Carrel v. Collins, 2 Bibb, 431; Morford v. Ambrose, 3 J. J. Marsh. 690; Crump v. Mead, 3 Mo. 233; Miller v. Ward, 2 Conn. 494; Clendennen v. Paulsel, 3 Mo. 230; 25 Am. Dec. 435; Webster v. Coffin, 14 Mass. 196; Seymour v. Bennet, 14 Mass. 268; Clark v. Moody, 17 Mass. 149; Cooper v. Mowry, 16 Mass. 7; Jones v. Walker, 13 B. Mon. 163; 56 Am. Dec. 557; Dodge v. Rogers, 9 Minn. 223; Cape Fear etc. Co. v. Wilcox, 7 Jones, 481; 78 Am. Dec. 260; Camp v. Barker, 21 Vt. 469.

J. J. Marsh. 53; 22 Am. Dec. 116. A lime-burner contracted with the receiver of a railroad to remove the ashes, etc., for a year from an ash-pit, for the cinders and coals to be found there. Before the expiration of the year the assistant general superintendent terminated the contract, on the ground of the jealousy of other lime-burners. Held, that the receiver must respond in damages: Kerr v. Little, 42 N. J. Eq. 528. A agreed to sell to B, at a stipulated price per ton, all the ice on a pond. In violation of the contract, A permitted another party to remove a portion of it. B refused to take that which remained. Held, that he was justified in so doing: Murphy v. St. Louis, 8 Mo. App. 483. By a contract between an attorney and his client, the former agreed to defend the latter on a charge of grand larceny for five hundred dollars. Part of the service was rendered, and the attorney was able and ready to go on, but the client fled from justice, and forfeited his recognizance. Held, that the attorney might, in an action against the client, recover the entire fee: Bright v. Taylor, 4 Sneed, 159. A agreed to make steel rails for B, B to give directions as to the drilling. This B failed to do, finally declaring the contract off. The directions were necessary, and B might have been justified in refusing to accept the rails had they not been drilled as he wished. Held, that B was liable for breach of contract: Pittsburgh Bessemer Steel Rail Co. v. Hinckley, 17 Fed. Rep. 584.

§ 2524. Performance Rendered Impossible by Act of the Law. Where the performance is rendered impossible by the act of the law, there is no breach. A charter-party for the loading of a cargo at a foreign port is excused by a declaration of war with that country rendering it impossible to provide or ship the cargo without an illegal act of trading with the enemy. But the performance is not excused if prevented by the laws or acts of a foreign country. A contract made in contemplation

1 Wade v. Mason, 12 Gray, 335; 74 Am. Dec. 597; Livingston v. Tompkins, 4 Johns. Ch. 416; 8 Am. Dec. 598; Baker v. Johnson, 42 N. Y. 126. In Atkinson v. Ritchie, 10 East, 534, it is said: "No contract can be carried into effect which was originally made contrary to the provisions of law, or which, being made consistently with the rules of law at the time, has

2

become illegal in virtue of some subsequent law."

2 Esposito v. Bowden, 7 El. & B. 763; 27 L. J. Q. B. 17; Reid v. Hoskins, 6 El. & B. 253; 26 L. J. Q. B. 6.

3 Leake on Contracts, 713; citing Splidt v. Heath, 2 Camp. 57; Blight v. Page, 3 Bos. & P. 295; Barker v. Hodgson, 3 Maule & S. 267, the court in the last case saying: "If the per

of the passage of legislative acts which were essential to the object of the contract, and the passage of which was confidently expected by both parties, cannot be enforced where the legislature refuses to pass those acts, and adopts other measures, entirely defeating the object of the parties in making the contract.'

ILLUSTRATIONS. - A lessor covenanted that neither he nor his assigns would permit any building upon a piece of land adjoining the demised premises. Held, to be discharged by a railroad company subsequently taking the land under compulsory powers given them by statute, who built a railroad station upon it: Baily v. De Crespigny, L. R. 4 Q. B. 180. A promised to pay B a certain sum, provided B should perform military duty for A for six months, and before the expiration of the six months, peace was proclaimed, and A was discharged. Held, that he was not entitled to recover anything: Jewell v. Thompson, 2 Litt. 52. A general agent of a life insurance company was engaged for five years at a stipulated salary. Before the expiration of the five years, the company was enjoined from doing business, and a receiver was appointed. The proceedings were instituted by the superintendent of the insurance department, and prosecuted by the attorney-general. Held, that the agent had no claim upon the fund in the receiver's hands for damages for an alleged breach of contract: People v. Globe Mutual Life Ins. Co., 91 N. Y. 174. A agreed to pay B a certain price per bushel for hauling all coal sold by A to C. C's business passed into the hands of a receiver, who purchased coal of A, under order of court, and employed A to haul it. Held, that B could not maintain an action against A for breach of contract: Atkinson v. Schoonmaker, 12 Mo. App. 425. Pending a suit, the court placed a manager in charge of the business of delivering ore to the defendant, under the contract which gave rise to the suit, and of receiving payment for the plaintiff. A creditor of plaintiff attached, in defendant's hands, money due plaintiff, who thereupon stopped payment, and the manager accordingly stopped delivery. Held, that defendant could not afterwards be compelled to receive the ore thus detained, the

original contract calling for the delivery of a certain quantity each month: Lehigh Zinc and Iron Co. v. Trotter, 42 N. J. Eq.

678.

§ 2525. Impossibility of Performance of One of Alternative Promises.-If a person contract to do one of two things in the alternative, and at the time of making the contract one of them is possible and the other impossible, it seems to be a general rule that he must perform that which is possible.' Where both alternatives are possible at the time of making the contract, and one of them subsequently becomes impossible, the question whether the other remains binding depends upon the construction of the contract as to the intention of the parties, under the circumstances.2 Where one contract relates to separate matters, a breach as to one matter does not excuse the other party from performance as to the other matter.3

1 Leake on Contracts, 716.

2 In Barkworth v. Young, 4 Drew, 25, it is said: "It is improper to lay down any universal proposition either way; but the principle to be applied in each case is, that it must depend on the intention of the parties, to be collected from the nature and circumstances of the transaction and the terms of the instruments; and that if the court is satisfied that the intention of the parties was that one of them should do a certain thing, but he is allowed at his option to do it in one or

other of two modes, and one of these modes becomes impossible by the act God, he is still bound to perform it in the other way.' But in New Hampshire it has been laid down that the obligor is excused from the performance of a disjunctive condition, if one of the alternative things becomes impossible of performance by the act of God or the fault of the other party: Smith v. Durell, 16 N. H. 344; 41 Am. Dec. 732.

3 Tucker v. Billing, 3 Utah, 82.

§ 2526.

§ 2534. Waiver of tender or of defects in

Tender Defined-Effect of. A tender is an offer by a debtor to his creditor of the amount of the debt.'1 A tender properly made and pleaded is a complete answer to an action for the debt; but the debtor, notwithstanding his tender is refused, must continue ready and willing to pay on demand. The plea of tender should be accompanied by a payment into court of the money tendered; and the defendant, if he can maintain the plea, will then be entitled to judgment against the plaintiff for his costs of defense. A plea of tender raises a presumption of

Rapalje and Lawrence's Law Dictionary. "The law considers a party who has entered into a contract to deliver goods or pay money to another as having substantially performed it, if he has tendered the goods or money to the party to whom the delivery or payment was to be made": Startup v. Macdonald, 6 Man. & G. 610.

2 In Dixon v. Clark, 5 Com. B. 377, the court say: "The principle of the plea of tender is, that the defendant has been always ready to perform entirely the contract on which the action is founded, and that he did perform it, as far as he was able, by tendering the requisite money, the plaintiff himself precluding a complete performance by refusing to receive it.

3 Dixon v. Clark, 5 Com. B. 378; Hesketh v. Fawcett, 11 Mees. & W.

356; Pulsifer v. Shepherd, 36 Ill. 512; Webster v. Pierce, 35 Ill. 158; Mason v. Groom, 24 Ga. 211; Lockhart v. Dewees, 1 Tex. 539; Brock v. Jones, 16 Tex. 461; Cary v. Bancroft, 14 Pick. 315; 25 Am. Dec. 393; Lanier v. Trigg, 6 Smedes & M. 641; 45 Am. Dec. 293. By a subsequent demand and refusal, the benefit of the tender is lost: Rose v. Brown, Kirby, 293; 1 Am. Dec. 22; Manny v. Harris, 2 Johns. 24; 3 Am. Dec. 389.

Becker v. Boon, 61 N. Y. 317; Cuelen v. Green, 5 Harr. (Del.) 17; Jarboe v. McAtee, 7 B. Mon. 279; Clark v. Mullenix, 11 Ind. 532; Brooklyn Bank v. De Grauw, 23 Wend. 342; 35 Am. Dec. 569; Spann v. Baltzell, 1 Fla. 301; 46 Am. Dec. 346. Contra, Lougborough v. McNevin, 74 Cal. 250; 5 Am. St. Rep. 435. The doctrine