tain an action against the purchaser for breach of contract."' 46

Abandonment in instalment contracts. Where, for instance, the plaintiff merely fails to pay for any particular load of straw, that of itself need not be an excuse for not delivering more straw, but where the plaintiff expressly refuses to pay for the loads to be delivered, the defendant is not liable for ceasing to perform his part of the contract.47

If two of four instalments have been delivered and the buyer becomes insolvent, the courts hold that if the seller was notified thereof by the buyer it is a case of abandonment. But if the seller learns of it in some other way, the seller must make a tender.48

46 Cort v. The Ambergate Railway Co., 17 Q. B. 127 (Eng.).

47 See Homer v. Shaw, 98 N. E. 697 (Mass.), LEADING ILLUSTRATIVE CASES.

48 Benjamin, Sales (Am. ed.), §§ 759, 764.

CHAPTER XV.

IMPOSSIBILITY OF PERFORMANCE.

180. Kinds of impossibility.-Impossibility of performance may (1) appear on the face of the contract; or (2) it may exist unknown to both or only to one of the parties at the time of the making of the contract; or (3) it may arise after the contract is made.

(1) Where the thing undertaken is obviously impossible, there is no contract. Thus, to give a promise to discover treasure by magic or to go around the world in a day, would on the face of the contract be physically impossible of performance, and no contract is created.49

(2) Impossibility which arises from the non-existence of the subject matter avoids the contract as indicated in the discussion on mistake,50 for there is nothing about which the parties can agree.

(3) The rules as to subsequent impossibility form the basis of this chapter's discussion.

181. Where impossibility is known.-As suggested, there are two cases where the impossibility is known: (1) where it is known to both parties; and (2) where it is known to one party only.

In the first situation, since there can be neither intention nor expectation of performance, one of the

49 Anson, Contracts (Huffcut's 2d ed.), §§ 129, 410.

50 See § 38.

essentials of a valid contract is lacking, namely, a legal consideration. Therefore, there is no enforcible contract where the impossibility is known to both parties.

On the other hand, where the act to be performed is physically possible, but for some other reason is impossible, and this fact is within the knowledge of the promisor only, nevertheless he will be bound by the contract. In Bullock v. Pottinger's Adm'r," 51 A agreed to pay to B a certain sum of money "when I collect the money on the bond on which suit is pending." As a matter of fact, there was no such bond, and A was aware of that situation. The contract was held to be broken and B was permitted to recover.

Thus there is an action on the contract for the party who has acted in good faith and in ignorance of the impossibility. Where A, who is a married man, promises to marry B, who is ignorant of that status, B may recover damages for breach of A's promise, although A could never have performed.52

If the impossibility of performance is known to the promisee, instead of to the promisor, necessarily he could not expect the promise to be carried out. Therefore, it would not be binding.

182. Subsequent impossibility. The mere fact that a contract turns out to be difficult to perform or burdensome does not discharge the agreement. Where A gives a promise to do an act in the future, he takes the risk incident to its performance. In general,

51 3 J. J. Marsh, 94 (Ky.).

52 Wild v. Harris, 7 C. B. 999 (Eng.). In reality, it is an action based on fraud in the form of contract.

therefore, impossibility which arises subsequently to the formation of a contract does not excuse the promisor.53 In Anspach v. Bast,54 A purchased a coal mine and agreed to work it diligently and constantly. He is not excused from performance because of a general cessation of coal operations. Similarly, must a contractor assume the risk of increased prices in materials, and the demands of labor. In Brown v. Royal Insurance Society,55 the insurance company, under the terms of the policy, elected to rebuild the premises which had been partially destroyed by fire. The building commissioners thereafter declared the standing portion unsafe and ordered that the whole building be torn down. Necessarily, this increased the expense of rebuilding. It did not, however, constitute an act of impossibility, but merely one of extra expense. The rule may be stated to be that "where the law creates a duty or charge, and the party is disabled to perform it without any default in him, there the law will excuse him; * * * but where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract."56 That is to say, the promisor may make the performance of his promise conditional upon its continued possibility. Then the risk is on the promisee if the performance becomes impossible."7

53 Anderson v. May, 50 Minn. 280, LEADING ILLUSTRATIVE CASES.

54 52 Pa. St. 356.

55 1 E. & E. 853 (Eng.).

56 Paradine v. Jane, Aleyn 26 (Eng.).

57 Whipple v. Refining Co., 64 Misc. 363 (N. Y.).

Illustrations of the general rule are to be found in many cases. A seller is not excused from performance if his machinery breaks down, although it is without his fault and he is therefore unable to manufacture the goods stipulated for in the contract.5 58 Where A promised to build a school house for B, the building fell down when partially completed, owing to hidden defects in the soil. It was held in the case of School Trustees v. Bennett,59 that this was no defense to A's action on the contract. He must take the risk of the nature of the soil as incidental to his contract.

183. Same subject-Exceptions.-The general doctrine that impossibility is no defense is harsh. Consequently, the courts will construe a contract so as to excuse performance under subsequent circumstances extraordinary that the risk of them ought not to be thrown on the promisor. "Where the event is of such a character that it cannot be reasonably supposed to have been in the contemplation of the contracting parties when the contract was made," says the court in Chicago, Milwaukee and St. Paul Ry. Co. v. Hoyt, "they will not be held bound by general words, which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens."

60

Therefore, to the general rule that impossibility arising subsequently to the making of the contract

58 Summers v. Hibbard, etc., Co., 153 Ill. 102.

59 27 N. J. L. 513.

60 149 U. S. 1, 14.