Effect of impossibility of performing a condition precedent or concurrent in discharging contract.... ... 1970 A party cannot be deprived of what he has received under a contract unless put in default..... 1971 Recovery of value of performance, when counter performance impossible.... 1972 Assumption of risk.... .1972a Recovery for services where full performance impossible... 1973 Recovery of payments made or property transferred, where full perform Measure of damages where full performance is prevented by impossibility... 1977 Benefits received from third persons by party excused from performing. Impossibility in the Civil law.. 1978 1979 § 1931. The defence of impossibility is modern. The form in which the early English law was habitually stated may be found in Serjeant Williams' Notes to Saunders' Reports. "When the law creates a duty, and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse him; as in waste, if a house be destroyed by tempest, or by enemies, the lessee is excused. So in escape, if a prison be destroyed by tempest or enemies, the gaoler is excused. But when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract. And therefore if a lessee covenant to repair a house, though it be burnt by lightning or thrown down by enemies, yet he is bound to repair it." 3 Though impossibility as a defence to an express promise was thus flatly denied, a promise of personal service must have been held excused by death or unavoidable illness from very early times; and that a supervening statute making performance illegal would discharge a covenant was also early recognized. But as to other cases of impossibility, it was thought enough to say that if the promisor wished to protect himself he might have done so by proper conditions or qualifications. 5 12 Williams' Saunders, 422, note 2. 2 Citing Y. B. 33 Henry VI. 1. See also Paradine v. Jane, Aleyn, 26. 3 Citing Bro. Covenant 4. dine v. Jane, Dyer, 33 a. pl. 10. Para ཝ 'Hyde v. Dean of Windsor, Cro. Eliz. 552, 553. See also Sparrow v. Sowgate, W. Jones, 29. Brewster v. Kitchell, 1 Salk. 198, overruling Brason v. Dean, 3 Mod. 39. 6 This statement, originating far back in the law, and then substantially true, is still repeated as a general formula, though in view of the exceptions, now well recognized to the enforceability of an impossible promise, it has no longer universal or even general validity." "The law upon the matter is undoubtedly in process of evolution." So modern are the exceptions to the general principle, that it was not until after the middle of the nineteenth century that it was held that the destruction or non-existence of inanimate subject-matter to which a contract related would excuse a promisor from liability. When it the defendant's obligation. Winstone v. Linn, 1 B. & C. 460, per Bayley, J.; Tarrabochia v. Hickie, 1 H. & N. 183, per Bramwell, B.; Phillips v. Clift, 28 L. J. Exch. 153, per Martin, B.; Seeger v. Duthie, 29 L. J. (C. P.) 253, per Byles, J., and in view of the development of the doctrine of implied conditions, such statements are open to similar criticism to that made in the text. In In Blackburn Bobbin Co. v. T. W. Allen & Sons, Ltd., [1918] 1 K. B. 540, 543, McCardie, J., quoted this rule saying that it "has again and again been restated. I only refer to Spence v. Chodwick (1847), 10 Q. B. 517, 530, per Wightman, J., and to Ford v. Cotesworth (1868), L. R. 4 Q. B. 127, per Blackburn, J." The learned judge then indicated the present inaccuracy of such a rule. other modern decisions the rule is stated with little recognition of how much modern law it contradicts. See, e. g., Prather v. Latshaw (Ind.), 122 N. E. 721; Runyan v. Culver, 168 Ky. 45, 181 S. W. 640, L. R. A. 1916 F. 3; North Hempstead v. Public Service Corp., 107 N. Y. Misc. 19, 176 N. Y. S. 621 (citing many other cases at p. 624); Monaca v. Monaca &c. St. Ry., 247 Pa. 242, 93 Atl. 344; Kingsville Cotton Oil Co. v. Dallas Waste Mills Tex. Civ. App.), 210 S. W. 833. See also 13 C. J., § 706; 3 Elliott, Cont., § 1891. 7 See Blackburn Bobbin Co. v. T. W. Allen & Sons, Ltd., [1918] 1 K. B. 540; Kinzer Const. Co. v. State, 125 N. Y. S. 46, 50. The same statement of general principle is often made in regard to the excuse of the defendant from liability by breach of contract by the plaintiff-namely, that if the parties had so desired they could have expressly provided that the plaintiff's performance should be a condition of 8 McCardie, J., in Blackburn Bobbin Co., Ltd., v. T. W. Allen & Sons, Ltd., [1918] 1 K. B. 540, 542, citing "per Atkin, J., in Lloyd Royal Belge Société Anonyme v. Stathatos, [1917], 33 Times L. R. 390, and per Pickford, L. J., in Hulton & Co. v. Chadwick & Taylor [1918] 34 Times L. R. 230." This was settled by the case of Taylor v. Caldwell, 3 B. & S. 826. Blackburn, J., who delivered the opinion of the court, relied greatly on the Civil law, which clearly supports his conclusion (see infra, § 1979), but is equally clearly at variance with the early common law. The few English authorities cited, related to the death of one under a personal contract, or the death of an animal. The most pertinent case was Williams v. Lloyd, W. Jones, 179, where a contract to deliver a horse was held excused by the death of the horse. A short time before the decision of Taylor v. Caldwell, in Hills v. Sughrue, 15 M. & W. 253, a contract to load a full cargo of is now said that courts "will neither make nor modify contracts, nor dispense with their performance, "10 if it is meant that such power will not be exercised except in accordance with legal principles, the statement is sound; but if the meaning is that parties to contracts are always liable in accordance with their terms, it is far too narrow a limitation of the functions of the common law, and a court which insists upon such a statement obliges itself in various situations to use the confusing language of fiction in order to achieve correct results. Under the name of implied contracts (quasi-contracts) courts have wisely imposed obligations on parties to contracts which they never agreed to assume; and because of fraud, mistake, duress, impossibility and illegality, have modified contracts or dispensed with their performance, simply because justice required it. § 1932. Objective and subjective impossibility. Impossibility may be due to the nature of the thing to be done or to the capacity of the person who has undertaken to do it. The first is called objective, the second-subjective. In personal contracts these two kinds of impossibility unite. As the act to be done is bound up with the person who is to do it, and the act would not be that called for by the contract if it were performed by any one else, the incapacity of the promisor involves not only subjective impossibility but objective as well. Subjective impossibility except in the cases where it is also objective, does not excuse non-performance of a guano at a certain island, was held to impose liability upon the promisor though, as it proved, there was not enough guano upon the island to make a cargo. See also Barr v. Gibson, 3 M. & W. 390; Hall v. Wright, E. & B. 746, for illustrations of technical severity. Of the development of the law subsequent to the decision of Taylor v. Caldwell, 3 B. & S. 826, McCardie, J., said in Blackburn Bobbin Co. v. T. W. Allen & Sons, Ltd. [1918], 1 K. B. 540, 544: "The doctrine of Taylor v. Caldwell, 3 B. & S. 826, was extended by Nickoll v. Ashton, [1901], 2 K. B. 126, and still more strikingly enlarged by the Coronation cases, of which Krell v. Henry, [1903], 2 K. B. 740, is the most vivid example, for in Krell v. Henry the Court held that a collateral, though important, circumstance was the basis of the contract between the parties, and that when the basis ceased it followed that the contract was dissolved. Krell v. Henry has been frequently cited and adopted in the highest tribunal." 10 Cameron-Hawn Realty Co. v. Albany, 207 N. Y. 377, 381, 101 N. E. 162, 49 L. R. A. (N. S.) 922. contract. Insolvency or inability to obtain necessary funds is a perfect illustration of subjective impossibility. It absolutely precludes making a payment contracted for; but whatever the cause of insolvency it is no excuse. And all kinds of impossibility arising from a promisor's inadequate pecuniary resources are equally immaterial.11 An agreement to ship or to deliver goods is not discharged by the inability, without fault on his part, of the promisor to get the means of shipment. 12 Nor is an agreement to find a purchaser at an advanced price within a stated time by the impossibility of procuring such a purchaser.13 One who makes a promise which cannot be performed without the consent or coöperation of a third person, is not excused from liability because of inability to secure the required consent or coöperation, 14 unless the terms or nature of the contract 11 Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, 125 S. W. 139; Dean v. Lowey, 50 Ill. App. 254; Western Drug &c. Co. v. Board of Administration, (Kan.) 187 Pac. 701; Pratt v. McCoy, 128 La. 570, 54 So. 1012; McCreery v. Green, 38 Mich. 172; Lewis v. Atlas Mut. L. Ins. Co., 61 Mo. 534; Taylor v. Syme, 162 N. Y. 513, 57 N. E. 83; Smith v. Kaufman, 30 Pa. Super. 265. Prevention by law, therefore, is no excuse when the law is called into action by non-payment of a debt owed by the promisor. Miller v. Thornton, 1 Duv. (Ky.) 369 (attachment of sepcific property to which the contract related). 12 Eppens v. Littlejohn, 164 N. Y. 187, 58 N. E. 19, 52 L. R. A. 811; Irwin v. Kelly, 176 Ill. App. 178. See also Railroad Company v. Reichert, 58 Md. 261, 274; Cluley-Miller Coal Co. v. Freund, etc., Mfg. Co., 138 Mo. App. 274, 120 S. W. 658; R. J. Menz Lumber Co. v. McNealey, 58 Wash. 223, 108 Pac. 621; Hesser-MiltonRenahan Coal Co. v. La Crosse Fuel Co., 114 Wis. 654, 90 N. W. 1094. Cf. Burt v. Garden City Sand Co., 141 Ill. App. 603, affd. 237 Ill. 473, 86 N. E. 1055. 13 Hurless v. Wiley, 91 Kan. 347. 137 Pac. 981, L. R. A. 1915 C. 177, See also Ireland Investment Co. v. Campbell, 24 Manitoba L. R. 703. 14 M'Neill v. Reid, 9 Bing. 68; Blow v. Lewis, 19 Y. L. R. 127; Chicago, M. & St. P. R. Co. v. Hoyt, 149 U. S. 1, 37 L. Ed. 625, 13 S. Ct. 779; Stone v. Dennis, 3 Port. (Ala.) 231; Danenhower v. Hayes, 35 Dist. of Col. App. 65, 33 L. R. A. (N. S.) 698; Burgett v. Loeb, 43 Ind. App. 657, 88 N. E. 346; Hampe v. Sage, 87 Kans. 536, 125 Pac. 53 (rev'd on ground of illegality of contract in Sage v. Hampe, 235 U. S. 99, 35 S. Ct. 99, 59 L. Ed. 147); Wareham Bank v. Burt, 5 Allen, 113; Wright v. Fullerton, 60 Mo. App. 451, 1 S. W. 176; Pumpelly v. Phelps, 40 N. Y. 59, 100 Am. Dec. 463; Marsh v. Johnston, 125 N. Y. App. Div. 597, 109 N. Y. S. 1106, affd. in 196 N. Y. 511, 89 N. E. 1104; Roos Road Mach. Co. v. Forbus, 23 Oh. L. Journal, 217; Bradley v. McHale, 19 Pa. Super. 300; Gulf Refining Co. v. Pagach (Tex. Civ. App.), 146 S. W. 719. See also cases supra, §§ 1422, 1436, where the wife of one who has contracted to sell real estate refuses to release a dower interest. indicate that he does not assume this risk.15 And the rule is general that purely subjective impossibility is immaterial, 16 except to the extent that the principle is qualified by what is hereafter stated of the effect of failure of the contemplated means of performance. 17 § 1933. Existing and supervening impossibility. Performance of a promise may be impossible at the time the promise was made, or it may become impossible because of supervening circumstances. If the impossibility exists at the time when the contract was made it may be supposed that one or both parties were aware of the fact or that neither was aware of it. It is sometimes said that if the agreement is impossible in itself, it is void. 18 This, however, does not seem necessarily true. Doubtless if the the parties know of the imposibiity they will not make such an agreement. Merely going through a form of words which they know can mean nothing, will not make a contract, 19 but by mistake it may well happen that parties execute a writing as their contract which contains a provision impossible of performance. 20 If it is said the transaction is necessarily void, reformation never will be possible; yet it seems that a case might well be supposed where reformation of such a contract would be appropriate. In disregarding a plainly expressed provision of a contract because it is repugnant to a more vital clause, courts are, it seems, under the guise 15 In a contract of apprenticeship the promise of the master to instruct is excused by the wilful refusal, Raymond v. Minton, L. R. 1 Exch. 244, or total incapacity, Clancy v. Overman, 1 Dev. & B. 402, of the apprentice to learn. See also Barger v. Caldwell, 2 Dana, 129; Wright v. Brown, 5 Md. 37; Wyatt v. Morris, 2 Dev. & B. 108. 16 Fenwick v. Schmalz, L. R. 3 C. P. 313; Lind v. United States, 44 Ct. Cl. 558; Jones v. Anderson, 82 Ala. 302, 2 So. 911; Klauber v. San Diego &c. Co., 95 Cal. 353, 30 Pac. 555; Wilson v. Alcatraz Asphalt Co., 142 Cal. 182, 75 Pac. 787; Potts Drug Co. v. Benedict, 156 Cal. 322, 333, 104 Pac. 432, 25 L. R. A. (N. S.) 609; Dexter &c. Paper 17 See infra, § 1951. 18 See Wald's Pollock, Contracts, 3d Am. ed. 520. 19 See supra, § 21. 20 In Le Roy v. Jakobosky, 136 N. C. 443, 48 S. E. 796, 67 L. R. A. 977, the parties entered into a contract on April 28th to convey land on April 23d of the same year. |