He could have rebuilt or purchased shirts to be sold by B from other firms.93 But if the goods were to be made at a particular factory, which burned down, B would have been excused from performance.9+

Building contracts. Generally, in building contracts, if the defendant contracts to furnish labor and materials and to build a house on the land of the plaintiff, the destruction of the house before he completes his contract will not excuse the defendant from performance. Furthermore, he may not retain the instalments which have been paid to him on account.95 But if the defendant agrees to repair an existing house or to furnish part of the labor and materials for a house for the plaintiff towards the erection of which the plaintiff is to furnish other labor and materials, and the house is destroyed without the fault of the defendant, he is excused from further performance.

96

Leaseholds. The common law doctrine is that if a leasehold building is accidentally destroyed, nevertheless the lessee's obligation to pay rent continues."7 Furthermore, if the lease contains an express covenant on the part of the lessee to make repairs or to surrender the premises at the expiration of the term in as good condition as at the beginning of the tenancy, the common law doctrine requires the performance of such covenants.98 Statutes, however, have

93 Clarksville Land Co. v. Harriman, 68 N. H. 374. 94 Stewart v. Stone, 127 N. Y. 500.

95 Wald's Pollock, Contracts (3d ed.), p. 528, note; Stees v. Leonard, 20 Minn. 494.

96 Butterfield v. Byron, 153 Mass. 517, LEADING ILLUSTRATIVE CASES. 97 Hallett v. Wylie, 3 Johns. 44 (N. Y.); Fowler v. Bott, 6 Mass. 63. 98 Polack v. Pioche, 35 Cal. 416; Hoy v. Holt, 91 Pa. St. 88.

been passed in a number of the states changing this doctrine.99

187. Personal incapacity.-If A contracts to serve B for a certain period of time, and dies, he is unable to perform his promise. Similarly if he becomes seriously ill or insane, he cannot serve B as he agreed. Such an impossibility discharges the contract, for there is an implied condition in the contract that the party shall be alive and capable of performance.1 The same rule is applied in the case where the employer dies.2

The impossibility caused by illness need not be absolute, for a practical impossibility constitutes a sufficient excuse. If a singer is so sick that it is unreasonable to demand that he sing, he need not perform. Furthermore, it has been held that an employee is exonerated for non-performance if a cholera epidemic breaks out which is so dangerous that a man of ordinary prudence would be justified in leaving and actually does leave.3

But if the nature of the services is such that the executor of a deceased party to the contract could perform, he will be called upon to do so. A surviving joint contractor may also be bound.5

Where the party in default knows that the impossibility will occur, he cannot set up such inability to perform as a defense. Thus, if A knows that he will

99 Wattles v. South Omaha Ice & Coal Co., 50 Nebr. 251.

1 Yerrington v. Greene, 7 R. I. 589; Harrington v. Fall River Iron Works Co., 119 Mass. 82. Parties may contract to assume such a risk.

2 Lacy v. Getman, 119 N. Y. 109.

3 Lakeman v. Pollard, 43 Me. 463. 4 Billing's Appeal, 106 Pa. St. 558.

5 Babcock v. Farrell, 245 Ill. 14.

be incapacitated before he can complete the contract, he will not be discharged from liability for non-performance.

In Jennings v. Lyons, A agreed with B that he and his wife would work for a year for a certain gross sum. Four months later, the wife, being about to give birth to a child, left the service. The court held that A would be liable for a breach of contract "not in fact, for not doing what cannot be done, but for undertaking and promising to do it." But if the illness, for instance, was reasonably believed to be only temporary, the fact that it later became incurable, will excuse performance and discharge the contract. A promised to marry B. At the time he had a curable disease. Later, it became chronic, rendering him unfit to marry. This was a defense to an action on the contract." "We hold, therefore," recites the opinion in Sanders v. Coleman, "that a contract to marry is coupled with the implied condition that both parties remain in the enjoyment of life and health, and if the condition of the parties has so changed that the marriage state would endanger the life or health of either a breach of the contract is excusable." But if both parties know that one of them suffers from an incurable disease, and contract for marriage, it seems that the agreement is not discharged. The court held in Hall v. Wright' that if the plaintiff desired that such a contract be carried out, the defendant must perform or pay

6 39 Wis. 553.

7 Sanders v. Coleman, 97 Va. 690.

8 Same case.

9 E. B. & E. 746, 765 (Eng.).

8

damages.10 But in another case, although both parties were aware of the presence of the disease (pulmonary tuberculosis), the doctrine of public policy was permitted to enter, and the contract to marry was held void.11

Where after the contract to marry one of the parties acquires a loathsome disease by an immoral act, his condition is not a defense to an action for breach of contract. It is suggested that this is a case where the defendant has prevented performance.12 But if the disease is only of a temporary character, he is entitled to postpone the marriage until he is cured.13

188. Scope of impossibility.-The tendency of the law is undoubtedly toward an enlargement of the defense of impossibility. In any case where it may fairly be said that both parties assumed that the performance of the contract would involve the continued existence of a certain state of affairs, impossibility of performance due to a change in this condition furnishes and usually will be an excuse.14 Thus, although in general an unexpected strike is no excuse for a failure of performance within an agreed time, yet if the performance is to take place within a reasonable time, an unexpected strike which the promisor

10 See 37 American Law Review 226. Hall v. Wright is probably not law in the United States. Damages would lie in tort rather than on an agreement which if performed would be annulled. See Shackelford v. Hamilton, 93 Ky. 80, 88.

11 Grover v. Zook, 44 Wash. 489.

12 Costigan, Performance of Contracts, p. 65, note 175; Smith v. 67 N. J. L. 548. See § 184.

13 Trammell v. Vaughan, 158 Mo. 214.

14 Williston Sales (2d ed.), § 661.

Compton,

cannot stop except upon unreasonable terms will be taken into account in determining what is a reasonable time.15

189. Alternative contracts.-Where A agrees to do either one of two or more things, and it is possible to do one, the fact that the other is impossible does not excuse performance of the first. Thus A leased lands to B, who agreed at his option to pay for the ore raised, or to pay a fixed rent. It was held that the fact that no minerals were found would not excuse non-performance, because it was still possible to pay rent.16

If because of excusable impossibility or other legal defense a contractor cannot fulfill all of a number of similar contracts, but could perform any one if he disregarded the others, it seems that he may apportion the possible performance pro rata (proportionate share) among the several contracts, and be excused from further liability.

17

190. Rights of parties.-A failure to perform because of impossibility is a defense to an action for non-performance. But whether or not A may recover for such services as he has rendered is another problem. Thus A agrees to build a house for B. After considerable work is done, the incompleted building is destroyed by fire. While A may possibly defend for breach of contract, his rights of recovery for the work completed involves the principles of quasi-con

15 Empire Trans. Co. v. Philadelphia & Reading Coal & Iron Co., 77 Fed. 919. See Pittsburgh, Fort Wayne & Chicago R. R. Co. v. Hazen, 84 Ill. 36. 16 Marquis v. Thompson, M. & W. 87 (Eng.); Board of Education v. Townsend, 63 Ohio St. 514.

17 Oakman v. Boyce, 100 Mass. 477.