to not less than a stipulated sum each year. It was held to be no defense to an action by the lessor that the coal in the mine could not be extracted by any practised or practicable method of mining, no provision for this case having been made in the contract.187

Another case of impossibility of performance arises where a contract is entire, and involves the rendition of personal services or the doing of particular work, which could not be equally well performed by any third person, or where the party for whom the services are to be rendered or the work done places special reliance upon the knowledge, skill, or other personal qualities of the other party, or would not have made the same contract with any stranger, and such a contract is interrupted by the death of the promisor. Here the rule is that no liability attaches as against the estate of the decedent, but that the other party may rescind the contract, upon offering to pay a quantum meruit for so much as has been performed, and he is not obliged to accept a substitute and allow him to complete the contract.188 Thus, where an attorney at law took a conveyance of land to secure his fee for services to be performed in certain specified cases, of which services his death prevented more than a partial performance, it was held that a bill would lie against his estate to set aside the conveyance, upon a tender of so much of the fee agreed upon as was found to have been earned.189 So, a sale of goods upon credit to a particular member of a firm, for the partnership, but upon the express understanding that he shall personally attend to their sale, may be rescinded upon the death of such partner.190

But to justify the termination of a contract on account of impossibility of performance, the impossibility must be complete and permanent. A temporary interruption in the execution of a contract, or in the performance of work or

187 Beatie v. Rocky Branch Coal Co., 56 Mo. App. 221.

188 Williams v. Butler, 58 Ind. App. 47, 105 N. E. 387, 107 N. E. 300; Dickey v. Linscott, 20 Me. 453, 37 Am. Dec. 66; Clark v. Gilbert, 26 N. Y. 279, 84 Am. Dec. 189; Patrick v. Putnam, 27 Vt. 759; Hall v. Wright, El., Bl. & El. 791; Robinson v. Davison, L. R. 6 Exch. 269.

189 Callahan v. Shotwell, 60 Mo. 398. 190 Fulton v. Thompson, 18 Tex. 278.

services agreed to be maintained continuously, will not warrant a rescission where it results from no fault or neglect of either of the parties, but from the operations of nature or other unavoidable accident, and especially where it causes no substantial loss, and does not jeopardize the further continuance and completion of the contract.191 And again, the fact that the accomplishment of an undertaking proves to be more difficult than was supposed at first, or that obstacles have arisen which render its completion uncertain or even improbable, does not justify the party in rescinding or withdrawing from it, but it must appear that the undertaking cannot by any means be performed.192 Thus, a building contractor is not excused from performance by the fact that there was a defect in the soil which rendered necessary a greater amount of work than was contemplated when the contract was made.193 Furthermore, no one can claim the right to rescind his contract on the ground that it has become impossible for him to perform it, until he has at least made a bona fide attempt or effort to perform.194 Of course, there may be cases in which the alleged impossibility arises from physical causes or conditions which are apparent to everyone, and of such a nature that any person of ordinary intelligence could see the futility of attempting to overcome them. But the rule we have just stated applies in instances where the impossibility of an undertaking cannot be definitely asserted until a trial has been made, as, for example, in cases where it depends. upon the will or the actions of a third person. Thus, where a contract for the erection of a building provides that any errors in the plans shall be referred to the architect before the work is proceeded with, the contractor cannot justify a rescission of the contract on the ground that there are errors in the plans which make it impossible to erect the

191 Buffalo & L. Land Co. v. Bellevue Land & Improvement Co., 165 N. Y. 247, 59 N. E. 5, 51 L. R. A. 951; Lachmund v. Lope Sing, 54 Or. 106, 102 Pac. 598; Alexander v. Alexander, 8 Ala. 796; Asplund v. Mattson, 15 Wash. 328, 46 Pac. 341.

192 Berry v. Wells, 43 Okl. 70, 141 Pac. 444.

193 Ford & Denning v. Shepard Co., 36 R. I. 497, 90 Atl. 805. And see Becker v. City of Philadelphia (Pa.) 16 Atl. 625.

194 Tuohy v. Moore, 133 Cal. 516, 65 Pac. 1107.

building according to the plans, where he has not called the architect's attention to the defects and asked for a correction.195 And again, one cannot plead impossibility of performance as a ground for rescission, where the difficulty has been remedied by the other party, or the particular detail as to which the impossibility was alleged has been rendered possible by such party.196

Impossibility justifying rescission may also arise by operation of law, and this is the case where the particular thing contracted for was lawful at the time the contract was made, but has since been absolutely prohibited by law.197 Thus, a contract for the erection of buildings may be rendered legally impossible, so as to warrant rescission, by changes in the building laws, by the enactment of a law prohibiting the construction of buildings of the kind contemplated within the district where it was proposed to build, or prohibiting the erection of buildings for certain specified uses, or by an ordinance opening a street through the lot where the building was to stand.198 So, where one sold land to a state on an agreement that certain public buildings should be erected thereon, but the statute authorizing such buildings, on which both parties relied, was subsequently adjudged unconstitutional, it was held that the grantor should rescind, offering a return of the purchase money paid, before suing for a cancellation of the deed.199 On the same principle, a subscription for the purchase of stock in a corporation may be rescinded when it is discovered that the corporation cannot perform its undertaking without issuing stock in violation of law.200 And where a complainant contracted to purchase realty from certain executors, and, after making the first payment and securing the others, discovered that the executors had no power

195 Gibbs v. Girardville School Dist., 195 Pa. 396, 46 Atl. 91. 196 Cronin v. Tebo, 144 N. Y. 660, 39 N. E. 344.

197 Rooks v. Seaton, 1 Phila. (Pa.) 106; Jones v. Judd, 4 N. Y. 412; Baily v. De Crespigny, L. R. 4 Q. B. 180.

198 Hanover Building Co. v. Jacobs, 78 Misc. Rep. 410, 138 N. Y. Supp. 369; Rooks v. Seaton, 1 Phila. (Pa.) 106; Heaver v. Lanahan, 74 Md. 493, 22 Atl. 263.

199 State v. Blize, 37 Or. 404, 61 Pac. 735.

200 Trent Import Co. v. Wheelwright, 118 Md. 249, 84 Atl. 543.

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under the will to make a deed, it was held that he was entitled to rescind, and this although the executors offered to indemnify him and to procure power from the court to make a conveyance.201 Notwithstanding that these principles are well settled, it has been held in certain cases that a lease of property for a drinking saloon is not terminated or rescinded, nor the liability to pay rent released, by the adoption of local option in the given territory, rendering the sale of liquors illegal, at least where the privilege of local option was given by a statute in force at the time the lease was made.202

§ 209. Same; Destruction or Perishing of Subject-Matter. In contracts in which the performance depends on the continued existence of a given person or thing, there is an implied condition that an impossibility of performance arising from the perishing of the person or thing shall excuse the performance, and hence the destruction or loss of the property which is the subject-matter of the contract, or the agency by which it is to be carried out, if occurring without fault, discharges the contract or authorizes its rescission.203 In a leading English case it was said: "The authorities establish the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled, unless, when the time for the fulfillment of the contract arrived, some particular thing continued to exist, so that, when entering into the contract, they must have contemplated such continued existence as the foundation of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, the con

201 Potter v. Ranlett, 116 Mich. 454, 74 N. W. 661.

202 Hyatt v. Grand Rapids Brewing Co., 168 Mich. 360, 134 N. W. 22; Koen v. Fairmont Brewing Co., 69 W. Va. 94, 70 S. E. 1098; Hayton v. Seattle Brewing & Malting Co., 66 Wash. 248, 119 Pac. 739, 37 L. R. A. (N. S.) 432.

203 Taylor v. Caldwell, 3 Best & S. 826; Appleby v. Myers, L. R. 2 C. P. 651; Steamboat Co. v. Transportation Co., 166 N. C. 582, 82 S. E. 956; Powell v. Dayton, S. & G. R. R. Co., 12 Or. 488, 8 Pac. 544. See Owen v. Pomona Land & Water Co., 131 Cal. 530, 63 Pac. 850, 64 Pac. 253.

tract becomes impossible from the perishing of the thing without the default of the contractor." 204 Thus, for instance, where the owner of a vessel agrees to carry a cargo, the destruction of the vessel by the perils of the sea is a sufficient excuse for breach of the contract.2 205 We have already considered these questions from the point of view of impossibility of performance bringing about a failure of consideration, with a consequent right of rescission on the last-named ground,200 and the reader is referred to the section cited for an exposition of the rules which govern in case of the destruction by fire of a building which is under lease or which is the subject of an unexecuted contract of sale, and also the rules which apply in the case of mining leases and contracts, where the ore which forms the basis of the contract becomes exhausted or is found to be nonexistent or unworkable.

§ 210. Effect of Party's Disabling Himself to Perform. Where one of the parties to a contract, before the time for performance arrives, has placed himself, by his voluntary act or conduct, in such a situation that he is unable to fulfill his part of the agreement, it may be treated as an anticipatory breach of the contract or as a case of impossibility of performance subsequently arising; and in either view, the other party to the contract may thereupon rescind it and recover whatever consideration he may have given under it, or treat it as abandoned, and sue at once for such damages as he may have sustained. 207 The inability to perform need not relate to the whole and every part of the contract, but it must exist with reference to some substantial particular, going to the very essence of the contract and de

204 Taylor v. Caldwell, 3 Best & S. 826.

205 Furness, Withy & Co. v. Randall, 124 Md. 101, 91 Atl. 797. 206 Supra, § 160.

207 Russell v. Gregory, 62 Ala. 454; Aikman v. Murphy, 122 Cal. xviii, 55 Pac. 1099; Treat v. Smith, 139 Ill. App. 262; Smith v. Treat, 234 Ill. 552, 85 N. E. 289; Shaffner v. Killian, 7 Ill. App. 620; O'Neill v. Supreme Council, 70 N. J. Law, 410, 57 Atl. 463, 1 Ann. Cas. 432; Frost v. Clarkson, 7 Cow. (N. Y.) 24; De Peyster v. Pulver, 3 Barb. (N. Y.) 284; Krebs Hop Co. v. Livesley, 51 Or. 527, 92 Pac. 1084; Seipel v. International Life Ins. Co., 84 Pa. 47; South Texas Telephone Co. v. Huntington (Tex. Civ. App.) 121 S. W. 242.