sible exception to the non-survival of actions for breach of promise to marry exists where there can be shown some special property injury to the plaintiff within the contemplation of the parties.3 § 1946. Destruction of specific thing contracted to be sold, leased or bailed. It is now well settled that where the existence of a specific thing is necessary for the performance of a contract, the accidental destruction or non-existence of that thing excuses the promisor, unless he has assumed by his contract the risk of its existence. The most obvious application of the principle is where specific property, the subject-matter of a contract to sell or lease, is destroyed before performance. In such a case the seller or lessor is freed from liability. Where the destruction happens before the bargain, mistake as well as impossibility is involved and the matter has already been considered. But, though depending on impossibility alone, the result is the same when the destruction is subsequent to the bargain; and on 494; V. 3 Such a qualification to the general rule denying the survival of the action was suggested in Chamberlain Williamson, 2 M. & S. 408, and Finlay v. Chirney, 20 Q. B. D. 494; Hovey v. Page, 55 Me. 142, and other cases. But see Quirk v. Thomas, [1916] 1 K. B. 516. Supra, §§ 1560-1564. 5 Taylor v. Caldwell, 3 B. & S. 826; Howell v. Coupland, 1 Q. B. D. 258; Stone v. Waite, 88 Ala. 599, 7 So. 117; Ontario Fruit Assoc. v. Cutting Packing Co., 134 Cal. 21, 66 Pac. 28, 53 L. R. A. 681, 86 Am. St. 231; J. S. 5 Potts Drug Co. v. Benedict, 156 Cal. 322, 104 Pac. 432, 25 L. R. A. (N. S.) 609; Martin Emerich Outfitting Co. v. Siegel, 237 Ill. 610, 86 N. E. 1104, 20 L. R. A. (N. S.) 1114; Losecco v. Gregory, 108 La. 648, 32 So. 985; Adams v. Foster, 5 Cush. 156; Piaggio v. Somerville (Miss.), 80 So. 342, 344; Berlee v. Jeffcott, 89 N. J. L. 34, 97 Atl. 789; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Curtiss v. Prinderville, 53 Barb. 186; Powell v. Dayton &c. R., 12 Oreg. 488, 8 Pac. 544; McMillan v. Fox, 90 Wis. 173, 62 N. W. 1052. Sec. 8 (1) of the Uniform Sales Act provides: Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided. In Bigler v. Hall, 54 N. Y. 167, the defendant agreed to sell and deliver certain logs then on the bank of a principles of failure of consideration, previously considered," a buyer of personalty is not liable if the destruction precedes the transfer of title or risk, and if he has paid the price in advance it may be recovered. So one who contracts to sell real estate is excused from liability if it is fortuitously destroyed.' The same principles would excuse one who had contracted to lease property which was destroyed before actually leased, and a lessee who had covenanted to return leased goods.10 For the same reason a bailee is not liable for the loss, injury, or destruction of the bailed property without fault on his part,11 unless he expressly contracts, as he may, to assume the risk of such accidental loss or injury.12 stream. The plaintiff paid the price. Some of the logs were thereafter lost because of a freshet, without the seller's fault. The majority of the court held that even though title had passed at the time of the bargain, the absolute promise of the seller to deliver made him liable to restore the contract price of the lost logs. The decision seems wrong and the dissenting opinion of Reynolds, J., correct. The seller if not paid for these logs should be allowed to recover the price, if title had passed (see supra, § 799) and, a fortiori, having been paid should be allowed to keep the payment, his promise to deliver being excused by the destruction of the logs. 6 Supra, § 838. 7 Calcutta Co. v. DeMattos, 32 L. J. Q. B. 322, 335; Tillson v. United States, 129 U. S. 101, 9 S. Ct. 255, 32 L. Ed. 636; Hays v. Pittsburgh Co., 33 Fed. 552; Peace River Phosphate Co. v. Grafflin, 58 Fed. 550; Jones v. Pearce, 25 Ark. 545; J. S. Potts Drug Co. v. Benedict, 156 Cal. 322, 104 Pac. 432, 25 L. R. A. (N. S.) 609; Crawford v. Smith, 7 Dana, 59; Brown v. Childs, 2 Duv. 314; Phillips v. Moor, 71 Me. 78, 80; Lingham v. Eggleston, 27 Mich. 324; Hahn v. Fredericks, 30 Mich. 223, 18 Am. Rep. 119; Wilkinson v. Holiday, 33 Mich. 386; Slade v. Lee, 94 Mich. 127, 53 N. W. 929; Drews v. Ann. River Logging Co., 53 As to his right to recover the price in spite of his own non-performance, see supra, §§ 928 et seq. 10 Chamberlen v. Trenouth, 23 U. C. C. P. 497. 11 Southcote's Case, 4 Co. 83 b; Kettle v. Bromsall, Willes, 118; Sun Printing &c. Assoc. v. Moore, 183 U. S. 642, 654, 22 S. Ct. 240, 245, 46 L. Ed. 366; Reeves v. The Constitution, Gilp. 579, Fed. Cas. No. 11,659; Mulvaney v. King Paint Mfg. Co., 256 Fed. 612, 167 C. C. A. 642; Francis v. Shrader, 67 Ill. 272; Watkins v. Roberts, 28 Ind. 167; Field v. Brackett, 56 Me. 121; Buis v. Cook, 60 Mo. 391; Millon v. Salisbury, 13 Johns. 211; Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215; Harrington v. Snyder, 3 Barb. 380; Hyland v. Paul, 33 Barb. 241; Sawyer v. Wilkinson, 166 N. C. 497, 82 S. E. 840, L. R. A. 1915 B. 295. See also Philippine Ids. v. Bingham, 13 Philippine, 558, and supra, § 1056. The exceptional liability of carriers and innkeepers is elsewhere considered. 12 Sun Printing, etc., Assoc. v. Moore, What amounts to a promise to assume the risk has given rise to some difficulty. A mere promise to return the bailed property imposes no greater liability than the implied promise involved in the contract of bailment;13 and the same is generally held though the promise is to return in good condition or in as good condition as when received, 14 but under a contract to return or pay for the bailed property, 15 or to be responsible for it, the bailee becomes liable." So also if bailed property is used otherwise than in accordance with the contract of bailment, the bailee is generally liable for accidental injury.17 し 16 § 1947. Injury of goods contracted to be sold. If the property in question is accidentally injured the Uniform Sales Act doubtless expresses the law apart from statute (except perhaps in allowing the buyer to enforce partially a divisible contract) in the following provisions.18 Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault of the seller or the buyer, part of the goods perish or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character, the buyer may at his option treat the contract 183 U. S. 642, 46 L. Ed. 366, 22 S. Ct. 240; Mulvaney v. King Paint Co., 256 Fed. 612, 167 C. C. A. 642; S. E. Olson Co. v. Brady, 76 Minn. 8, 78 N. W. 864; Thompson v. Thompson, 78 Minn. 379, 81 N. W. 204, 543; Commercial Elec. Supply Co. v. Missouri Commission Co., 166 Mo. App. 332, 148 S. W. 995; Armijo v. Abeytia, 5 N. Mex. 533, 25 Pac. 777; Alaska Coast Co. v. Alaska Barge Co., 79 Wash. 216, 140 Pac. 334, L. R. A. 1915 C. 423. 13 Lake Michigan, etc., Co. v. Crosby, 107 Fed. 723; Field v. Brackett, 56 Maine, 121; Sawyer v. Wilkinson, 166 N. C. 497, 82 S. E. 840, L. R. A. 1915 B. 295. Cf. Pope v. Farmers', etc., Mill Co., 130 Cal. 139, 62 Pac. 384, 53 L. R. A. 673, 80 Am. St. 87; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790. 14 See supra, § 932 n. 58; Mulvaney v. King Paint Mfg. Co., 256 Fed. 612, 167 C. C. A. 642 ("to be returned to you in same condition as received with the usual wear and tear"). 15 Drake v. White, 117 Mass. 10; Austin v. Miller, 74 N. C. 274; Grady v. Schweinler, 16 N. Dak. 452, 113 N. W. 1031, 14 L. R. A. (N. S.) 1089, 125 Am. St. Rep. 674. 16 National Cash Register Co. v. Caillias, 84 N. Y. S. 166. See also Rapid Safety Fire Extinguisher Co. v. Hay-Beddun Mfg. Co., 37 N. Y. Misc. 556, 75 N. Y. S. 1008, affd. 77 N. Y. App. D. 643, 79 N. Y. S. 1145. 17 Hale on Bailments, 186, L. R. A. 1915 B. 304 n. 18 Sec. 8 (2). (a.) As avoided, or (b.) As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer if the contract was divisible. The rights given the buyer involve an application of the general doctrine of election to the law of sales. Though the buyer may refuse to take any of the goods if some are destroyed or injured, he may take them if he wishes to do so.19 He cannot, however, change his own liability in such a case from that provided for by the contract. He must pay the agreed price for what he receives, even though he is not receiving all that the contract required. The provision does not excuse one who has contracted to finish and deliver specific incomplete articles which are injured accidentally after the bargain, unless the injury is so great that they are substantially changed in character,20 for performance is still possible. § 1948. Destruction of essential specific thing. Not only where a specific thing is itself to be sold or transferred, but wherever a contract requires for its performance the existence of a specific thing, the fortuitous destruction of that thing, or such impairment of it as makes it unavailable, excuses the promisor unless he has clearly assumed the risk of its continued existence. A contract to manufacture goods in a particular factory is discharged by the destruction of the factory; 21 a contract to do work on a specific building is discharged by the destruction of that building; 22 a contract to carry goods by a particular ship is discharged by the loss of the ship,23 or by such an injury to it as prevents its use within the 19 Thus one who has contracted to sell his crop of hops cannot refuse to perform because the crop is of inferior quality. Livesley v. Johnston, 45 Oreg. 30, 76 Pac. 13, 946, 65 L. R. A. 783, 106 Am. St. 647. 20 Automatic Time Table Advertising Co. v. Automatic Time Table Co., 208 Mass. 252, 94 N. E. 462. 21 Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215. 22 See infra, § 1975. Cf. Field v. Haven, 26 Cal. App. 694, 173 Pac. 108. 23 Furness &c. Co. v. Randall, 124 Md. 101, 91 Atl. 797. time permitted by the contract; 24 and a contract to serve or to employ another on a particular ship is subject to the same defence.25 A contract to move a building is excused by its destruction; 26 a contract to furnish water from a spring by the failure of the spring; 27 a contract to drive logs down a stream by a fall in the water in the stream, owing to which performance becomes impossible. 28 24 Nickoll v. Ashton, [1901] 2 K. B. 126. 25 The Dawn, 2 Ware, 121; Ellis v. Midland R., 7 Ont. App. 464. 26 Jones-Gray Const. Co. v. Stephens, 167 Ky. 765, 181 S. W. 659. 27 Ward v. Vance, 93 Pa. 499. 28 Clarksville Land Co. v. Harriman, 68 N. H. 374, 44 Atl. 527. In Berg v. Erickson, 234 Fed. 817, 820, 148 C. C. A. 415 (though the case seems well decided on its facts, see supra, § 1934, n. 33.), the court manifested its disagreement with the tendency of modern decisions, saying: "The general rule is that one, who makes a positive agreement to do a lawful act, is not absolved from liability for a failure to fulfill his covenant by a subsequent impossibility of performance caused by an act of God or an unavoidable accident, because he voluntarily contracts to perform it without any reservation or exception, which, if he desired, he could make in his agreement, and thereby induces the other contracting party, in consideration of his positive covenant, to enter into and become bound by the contract, and while courts may enforce, they may not avoid such contracts in the absence of fraud or some similar defence. [Citing 9 Cyc. 627, par. 5; Paradine v. Jane, Aleyn, 26; Dermott v. Jones, 2 Wall. 1, 7, 8, 17 L. Ed. 762; The Harriman, 9 Wall. 161, 172, 173, 19 L. Ed. 629; Chicago, etc., Ry. Co. v. Hoyt, 149 U. S. 1, 14, 15, 13 S. Ct. 779, 37 L. Ed. 625; Jones v. United States, 96 U. S. 24, 29, 24 L. Ed. 644; Jacksonville, etc., Ry. Co. v. Hooper, 160 U. S. 514, 528, 16 S. Ct. 379, 40 L. Ed. 515; Northern Pac. Ry. Co. v. American Trading Co., 195 U. S. 439, 466, 467, 25 S. Ct. 84, 45 L. Ed. 269; Central Trust Co. v. Wabash, St. Louis & P. Ry. Co., 31 Fed. 440, 441; Robson v. Mississippi Logging Co., 61 Fed. 893, 900; Link Belt Engineering Co. v. United States, 142 Fed. 243, 247; Ferguson v. Omaha, S. W. R. Co., 227 Fed. 513, 523, 142 C. C. A. 145; McGehee v. Hill, 4 Port. (Ala.) 170, 29 Am. Dec. 277, 278; Meriwether v. Lowndes County, 89 Ala. 362, 7 So. 198, 199; School District v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371, 372, 374; Summers v. Hibbard, 153 Ill. 102, 38 N. E. 899, 46 Am. St. Rep. 872; Adams v. Nichols, 19 Pick. 275, 277, 278, 31 Am. Dec. 137; Rowe v. Peabody, 207 Mass. 226, 93 N. E. 604, 605, 606; Beach v. Crain, 2 N. Y. 86, 93, 49 Am. Dec. 369; Anderson v. May, 50 Minn. 280, 52 N. W. 530, 17 L. R. A. 555, 36 Am. St. 642; Hoy v. Holt, 91 Pa. 88, 91, 92, 36 Am. Rep. 659]. "There are authorities to the effect that, where it clearly appears from the situation of the parties and their contract that they must have known when they made it that its performance would be impossible unless a thing, or a condition of things then in existence should exist at the time of performance, or unless an indispensable thing or condition of things not then in existence should come into existence before and remain in existence at the time of performance, there also, in the absence of an express or im |