whose estimate a sum is to be assessed) so that the parties are no longer bound by it, they will be remitted to the original contract if their intention can thereby be substantially carried out. At all events a party for whose benefit the contract was varied, and who but for his own delay might have performed it as varied before it became impossible, cannot afterwards resist the enforcement of the contract in its original form (a). 3. We now come to the case of a contract becoming impossible 3. Imposof performance by the default of either party. sibility by default of either Default of no excuse, contract. Where the promisor disables himself by his own default from party performing his promise, not only is he not excused (for which promisor indeed authority would be superfluous) but his conduct is equi- but valent to a breach of the contract, although the time for per- breach of formance may not have arrived, and even though in contingent circumstances it may again become possible to perform it (b). A default consisting in mere omission may have the same effect. Where an arbitrator awards that the defendant shall pay the plaintiff's taxed costs of a suit on a certain day, it is the defendant's business to have them taxed before that day, and it is no excuse that in fact he had not notice of the taxation in time to pay them at the time and place fixed by the award (c). On the other hand, where the promisor is prevented from Default of promisee performing his contract or any part of it by the default or refusal discharges of the promisee, the performance is to that extent excused; promisor, and moreover default or refusal is a cause of action on which the may be treated as promisor may recover any loss he has incurred thereby (d), or he breach, or may rescind the contract and recover back any money he has contract already paid under it (e). Default may consist either in active voidable interruption or interference on the part of the promisee (ƒ), (a) Firth v. Midland Ry. Co. 20 Eq. 100. (b) See Leake on Contracts 351, 460; 1 Ro. Ab. 448, B. (c) Bigland v. Skelton, 12 East 436. (d) As in the familiar case of an action for non-acceptance of goods, for not furnishing a cargo, &c.; 0 (e) Giles v. Edwards, 7 T. R. 181. makes at his option. Roberts v. Bury Commis or in the mere omission of something without which the promisor cannot perform his part of the contract (a). The principle, in itself well settled, is illustrated by some recent cases. Where the failure of a building contractor to complete sioners, &c. the works by the day specified is caused by the failure of the other parties and their architect to supply plans and set out the land necessary to enable him to commence the works, "the rule of law applies which exonerates one of the two contracting parties from the performance of a contract when the performance of it is prevented and rendered impossible by the wrongful act of the other contracting party" (b), and the other party cannot take advantage of a provision in the contract making it determinable at their option in the event of the contractor failing in the due performance of any part of his undertaking. So where it is a term of the contract that the contractor shall pay penalties for any delay in the fulfilment of it, no penalty becomes due in respect of any delay caused by the refusal or interference of the other party (~). Cases of appren ticeship. In Raymond v. Minton () it was pleaded to an action of covenant against a master for not teaching his apprentice that at the time of the alleged breach the apprentice would not be taught, and by his own wilful acts prevented the master from teaching him. This was held a good plea, for "it is evident that the master cannot be liable for not teaching the apprentice if the apprentice will not be taught." An earlier and converse case is Ellen v. Topp (e), referred to by the reporters. There a master undertook to teach an apprentice several trades; it was held that on his giving up one of them, and thus making the complete performance of his own part of the contract impossible, the apprentice was no longer bound to serve him in any. "If the master is not ready to teach in the very trade which he has stipulated [promised] to teach, the apprentice is not bound to serve." A case of the same sort is put by Choke, J. in the Year Book, 22 Ed. 4. 26, in a case from which one passage has already been given. (a) Where a condition can be performed only in the obligee's presence. his absence is an excuse, 1 Ro. Ab. 457, U, pl. 1. A covenant to make within a year such assurance as the covenantee's counsel shall devise is discharged if the covenantee does not tender an assurance within the year, ib. 446, pl. 12. (b) Roberts v. Bury Commissioners, L. R. 5 C. P. 310, 329. (c) Holme v. Guppy, 3 M. & W. 387, Russell v. Da Bandeira, 13 C. B. N. S. 149, 32 L. J. C. P. 68. (d) L. R. 1 Ex. 244. (e) 6 Ex. 424, 442; 20 L. J. Ex. 241. "If I am bound to Catesby [then another judge of the Common Pleas] that my son shall serve him for seven years, and I come with my son to Catesby, and offer my son to him, and he will not take him, there because there is no default on my part I shall not forfeit the bond. In like manner if he took my son and afterwards within the term sent him away, it is unreasonable that this should be a forfeiture." contract. one must formed. Where one a question struction. Where a contract is in the alternative to do one of two Alterthings at the promisor's option, and one of them is impossible, native the promisor is bound to perform that which is possible (). Where one We find the rule clearly stated in the Digest (). Where one thing impossible, of two things contracted for in the alternative subsequently the becomes impossible, it is a question of construction for which no possible positive rule can be laid down, whether according to the true be perintention of the parties the promisor must perform the alternative which remains possible, or is altogether discharged (e). It was becomes held, indeed, in Laughter's case (7) that where the condition of impossible, a bond is for either of two things to be done by the obligor, of conand one of them becomes impossible by the act of God, he is not bound to perform the other. But this is to be accounted for by the peculiar treatment of bonds of which we shall speak presently, the right of election being part of the benefit of the condition, of which the obligor is not to be deprived. And even as to bonds the general proposition has been denied (e). In the absence of anything to show the intention in the particular case, the presumption should surely be the other way, namely that the promisor should lose his election rather than the promisee lose the whole benefit of the contract. Where either the promisor or the promisce, having the right under a contract to choose which of two things shall be done, chooses one which becomes impossible after the choice is determined, there (on authority as well as principle) it is the same as if there had been from the first a single unconditional contract to do that thing (e). In Roman law the presumption seems distinctly in favour of the promisor . (a) Da Costa v. Daris, 1 B. & P. 242. (b) Si ita stipulatus fuero: te sisti; nisi steteris, hippocentaurum dari proinde erit atque te sisti solummodo stipulatus essem. D. 45. 1. de v. o. 97 pr. (c) Barkworth v. Young, 4 Drew. 1, 25. And see Leake, 372-3. (d) 5 Co. Rep. 21 b. (e) Brown v. Royal Insurance Co. p. 331 above. Effects of default. Conditional contracts. remaining bound to do what is possible (a); otherwise it agrees with ours (b). The exception as to mora in the extract given in the note shows the application here of the general rule as to impossibility caused by acts of the parties. The case put is that the creditor has made his election (to have Stichus, suppose) but has neglected or refused to accept Stichus: now if Stichus dies he cannot demand Pamphilus. It is the same as if there had been a single promise, and the performance made impossible by the promisee's default. The same rule is given in another passage (c). There is yet something to be said of the treatment of conditional contracts where the condition is or becomes impossible. A condition may be defined for the present purpose as an agreement or term of an agreement whereby the existence of a contract is made to depend on a future contingent event assigned by the will of the parties (d). The condition may be either that an event shall or that it shall not happen, and is called positive or negative accordingly. Now the event which is the subject-matter of the condition, instead of being really contingent, may be necessary or impossible, in itself or in law. But the negation of a necessary event is impossible and the negation of an impossible event is necessary. (a) Save that in the case of an alternative obligation to deliver specific objects at the promisor's election he still has an election in solutione, as it is said, i.e. he may at his option pay the value of that which has perished. See Vangerow, Pand. § 569, note 2 (3. 22 sqq.) where the subject is fully worked out. (b) Papinian says: Stichum aut Pamphilum, utrum ego velim, dare spondes altero mortuo, qui vivit solus petetur, nisi si mora facta sit in eo mortuo, quem petitor elegit; tunc enim perinde solus ille qui decessit praebetur ac si solus in obligationem deductus fuisset. Quod si promissoris fuerit electio, defuncto altero (i.e. before election made), qui superest aeque peti potest. D. 46. 3. de solut, et lib. 95 pr. He proceeds to this curious question: What if one dies by the debtor's default before election made, and afterwards the other dies without his default? No action can be maintained on the stipulation, but there is a remedy by doli actio. (c) Stipulatus sum Damam aut Erotem servum dari, cum Damam dares, ego quominus acciperem in mora fui; mortuus est Dama; an putes me ex stipulatu actionem habere? Respondit, secundum Massurii Sabini opinionem puto te ex stipulatu agere non posse; nam is recte existimabat, si per debitorem mora non esset, quominus id quod debebat solveret, continuo eum debito liberari. D. 45. 1. de v. o. 105. (d) Savigny, Syst. § 116 (3. 121); Pothier, Obl. § 199. It therefore depends further on the positive or negative character of the contingency whether the condition itself is necessary or impossible. Thus we may have conditional promises with conditions of In what these kinds : Necessary: (a) By affirmation of a necessity. As a promise to pay £100, "if the sun shall rise to-morrow." (3) By negation of an impossibility: "If J. S. does not climb. to the moon," or "if my executor does not sue for my debt to him." Impossible: (7) By affirmation of an impossibility: "If J. S. shall climb to the moon," or "if J. S. shall create a new manor." (d) By negation of a necessity: "If the sun shall not rise tomorrow," or "if my personal estate shall not be liable to pay my debts" (a). It is obvious that as a matter of logical construction the forms (a) and (3) are equivalent to unconditional promises, (7) and (8) to impossible or nugatory promises. And so we find it dealt with by the Roman law (b). It is equally obvious that (still as a matter of logical construction) there is nothing to prevent the condition from having its regular effect if the event is or becomes impossible in fact. For example, "if A. shall dig 1000 tons of clay on B's land in every year for the next seven years": here there may not be so much clay to be dug, or A. may die in the first year. But a promise so conditioned is perfectly consistent and intelligible without importing any further qualification into it and it would obviously be more difficult to come to the conclusion that some further qualification is to be understood than in the case of a direct and unconditioned contract by A. himself to dig so much clay. Direct covenants or promises dependent on express conditions , must be construed with reference to these general principles: beyond this no rule can be given except that it is never to be (a) Slightly modified from Savigny, Syst. § 121 (3. 156, 158). (b) "Si impossibilis conditio obligationibus adiciatur, nihil valet stipulatio. Impossibilis autem conditio habetur, cui natura impedimento est quo minus existat, veluti si quis ita dixerit: Si digito caelum " ways condition may be necessary or impossible. |