Though this principle is frequently stated as one of universal application, the correctness of this may be questioned. Generally, no doubt, parties to a contract, though they may not

assume all risk of impossibility, do assume the chance that performance may become more difficult and expensive than it was at the time when the contract was entered into, or appeared likely to become; but where a very great increase in expense is caused by a circumstance not only unanticipated but inconsistent with facts which the parties obviously assumed as likely to continue, the basic reason for excusing the promisor from liability seems present.13 This is illustrated by cases where illness and especially where a well-founded fear of illness has been held an excuse. 14 So a promise by a mortgagee to furnish money to carry on the business of the mortgagor in the hands of an assignee was held excused by the mortgagor's bankruptcy which removed the assets of the business from the assignee.15 It can hardly be said that performance was impossible, but it would involve something very different from what the parties contemplated. In a number of cases 16 where performance of a covenant to mine a certain minimum quantity of clay or ore has been excused because of non-existence of the agreed quantity, it seems probable that "non-existence". really means in most cases, not obtainable except by means and with an expense impracticable in a business sense and not contemplated by the parties.17 In the cases last referred to,

S. E. 313; McCormick v. Jordon, 65
W. Va. 86, 63 S. E. 778; Roberts v.
American &c. Lumber Co., 76 W. Va.
290, 85 S. E. 535; Sundy v. Dominion
Natural Gas Co., 4 Dom. L. R. 663.

13 In Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430, the court held, Cooley, J., delivering the opinion, that a covenant in a lease to rebuild was excused by a building law, passed subsequent to the date of the lease, forbidding the use of wood of which the building had previously been built. The covenant was not impossible of performance, since it did not require a wooden construction. A contrary decision is David v. Ryan, 47 Iowa, 642. See also Fire Association v. Rosenthal, 108 Pa. 474, 1 Atl. 303.

14 See supra, § 1940.

15 Mahaska County State Bank v. Brown, 159 Ia. 577, 141 N. W. 459.

16 Clifford v. Watts, L. R. 5 C. P. 577, and similar cases (see supra, § 1567).

17 In a few cases this is plainly stated. In Mineral Park Land Company . Howard, 172 Cal. 289, 156 Pac. 458, L. R. A. 1916 F. 1, it was held that an agreement to take from certain land all the earth and gravel necessary for the construction of a particular work, and to pay for the same at specified rates, contemplated that the land contained the requisite quantity, available for use; and that performance was excused, notwithstanding there was a sufficiency of such materials on the land, if they were so situated that the promisor could not take them by ordinary means, nor except at a prohibitive cost, amounting to ten or

it is true that the situation giving rise to the defence existed when the contract was made, but it does not seem that this affected or should affect the decisions. If the contractors were held excused from the literal performance of their promises because so little of the agreed substance existed on the land in question as to make performance of the promise impracticable from a commercial standpoint, though not strictly impossible, surely the same consequence should follow wher supervening events produce the same situation. A promisor might better be supposed to assume the risk of the situation existing at the time when he contracts than of that subsequently arising from fortuitous circumstances.

The true distinction is not between difficulty and impossibility. As has been seen 18 a man may contract to do what is impossible, as well as what is difficult. The important question is whether an unanticipated circumstance, the risk of which should not fairly be thrown upon the promisor, has made performance of the promise vitally different from what was reasonably to be expected. 19

twelve times as much as the usual cost thereof.

In Brick Co. v. Pond, 38 Ohio St. 65, where the plaintiff had leased all the "good No. 1 fire clay on his land," subject to the condition that the lessees should mine or pay for not less than two thousand tons of clay every year, paying therefor twenty-five cents per ton, the court held that the lessees were not bound to pay for two thousand tons per year, unless there was No. 1 clay on the land in such quantities as would justify its being taken out.

In Virginia Iron &c. Co. v. Graham (Va.), 98 S. E. 659, the lessee was held excused on the strength of an allegation that ore "could no longer be found on the leased premises either of the quality or in the quantity that could be profitably mined; the cost of such tonnage as could be gotten out being altogether prohibitive." 18 Supra, § 1934.

19 In Northern Pac. Ry. Co. v. American Trading Co., 195 U. S. 439, 467, 25 S. Ct. 84, 49 L. Ed. 269, in an action against a carrier for breach of a transportation contract, performance of which was prevented by the improper refusal of clearance, the court said: "It ought not to be held that the mistaken action of the deputy collector in refusing to give the clearance should operate as an excuse for the non-performance of the contract, which was not thereby rendered illegal. It cannot be affirmed that such possible refusal was not within the contemplation of the contracting parties when the contract was made. Many causes, it was known, might operate to obstruct the transportation of articles contraband of war. This particular form of impediment may not have been actually within the minds of the parties to the contract, but there was, as the agreed facts show, present to their minds the fact that there might be

§1964. Building contracts.

In many cases where a builder or contractor has undertaken to erect a building or other structure, it has been injured or destroyed without fault of either party while in process of erection. It is uniformly held that the builder or contractor still remains bound by his promise, and will be liable in damages if he fails to complete the structure. Whether the injury or destruction was due to tempest, fire, defective soil, is immaterial.20 And a contract for excavation will not be excused because the character of the soil or rock is more troublesome trouble in procuring the transportation of the lead, because of its character as contraband of war, and in the light of those facts the contract was made and, in substance, ratified after it was made. The railroad receivers took the risk of this, as of other obstructions, in making the contract, and they ought to be held to it."

20 Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Simpson v. United States, 172 U. S. 372, 19 S. Ct. 222, 43 L. Ed. 482; Phoenix Bridge Co. v. United States, 211 U. S. 188, 29 S. Ct. 81, 53 L. Ed. 141; United States v. Spearin, 248 U. S. 132, 39 S. Ct. 59, 61, 63 L. Ed. 166; Day v. United States, 245 U. S. 159, 38 S. Ct. 57, 62 L. Ed. 219; Cutcliff v. McAnally, 88 Ala. 507, 7 So. 331; Carlson v. Sheehan, 157 Cal. 692, 109 Pac. 29; Ahlgren v. Walsh, 173 Cal. 27, 31, 158 Pac. 748, Ann. Cas. 1918 E. 751; School District v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Macfarland v. Barber, etc., Co., 29 App. D. C. 506; Prather v. Latshaw (Ind.), 122 N. E. 721; Parker v. Scott, 82 Iowa, 266, 47 N. W. 1073; Milske v. Steiner Mantel Co., 103 Md. 235, 63 Atl. 471, 5 L. R. A. (N. S.) 1105, 115 Am. St. Rep. 354; Stees v. Leonard, 20 Minn. 494; Haynes v. Second Baptist Church, 88 Mo. 285, 57 Am. Rep. 413; Leavitt v. Dover, 67 N. H. 94, 32 Atl. 156, 68 Am. St. Rep. 640; Trustees v. Bennett, 3 Dutch. 513, 72 Am. Dec. 373; Tompkins v. Dudley, 25 N. Y. 272, 82 Am.

Dec. 349; Lawing v. Rintles, 97 N. C. 350, 2 S. E. 252; Keel v. East Carolina, etc., Co., 143 N. C. 429, 55 S. E. 826; Newman Lumber Co. v. Purdun, 41 Ohio St. 373; Ford v. Shepard Co., 36 R. I. 497, 90 Atl. 805; Galyon v. Ketchen, 85 Tenn. 55, 1 S. W. 508; Lonergan v. San Antonio L. & T. Co., 101 Tex. 63, 104 S. W. 1061, 22 L. R. A. (N. S.) 364, 130 Am. St. Rep. 803; Creamery Package Mfg. Co. v. Russell, 84 Vt. 80, 78 Atl. 718, 32 L. R. A. (N. S.) 135; McCormick v. Jordon, 65 W. Va. 86, 63 S. E. 778. See also Hogan v. Globe Mut. &c. Assoc., 140 Cal. 610, 74 Pac. 153; Keeling v. Schastey, 18 Cal. App. 764, 124 Pac. 445; Doll v. Young, 149 Ky. 347, 149 S. W. 854; Peck-Hammond & Co. v. Miller, 164 Ky. 206, 175 S. W. 347; Logan v. Consolidated Gas Co., 107 N. Y. App. Div. 384, 95 N. Y. S. 163; Hanthorn v. Quinn, 42 Oreg. 1, 69 Pac. 817; King v. Low, 3 Ont. L. Rep. 234. So where an insurance company elects to restore a partially destroyed building instead of paying insurance money, the election is irrevocable and it must fulfil its undertaking though condemnation of the old structure (Brown v. Royal Ins. Co., 1 E. & E. 858), or change in the building laws (Fire Association v. Rosenthal, 108 Pa. 474, 1 Atl. 303. See also Brady v. Northwestern Ins. Co., 11 Mich. 425, 451), makes performance more burdensome than antic

ipated.

than was anticipated.21 Even delay is not excused. Difficulties in the construction of a building or other undertaking in process of construction, due to unusual weather or conditions of soil or the like, do not free the contractor from liability for breach of his promise to complete the structure by a given day.22 Vagaries of the weather are of such ordinary occurrence that possible delay from that cause should be anticipated. The parties cannot be supposed to have contracted on the assumption that the weather would be continuously favorable. 23

§ 1965. Contract to work on building.

Though one who contracts to build is not discharged from liability on his contract because of the destruction of his first or other attempts to perform the contract, the situation is different where the contract is to do work on a building and the building is destroyed. Here the parties assumed the continued existence of the building upon which the work was to be done, and if this assumption ceases to be true, the obligation is discharged. 24 Even though another similar building

21 Maryland Dredging Co. v. United States, 47 Ct. Cl. 557, affd. 241 U. S. 184, 60 L. Ed. 945, 36 S. Ct. Rep. 545; Rowe v. Peabody, 207 Mass. 226, 93 N. E. 604; Fruin v. Crystal R., 89 Mo. 397, 14 S. W. 557. But see Kinzer Const. Co. v. State, 125 N. Y. S. 46.

22 Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Simpson v. United States, 172 U. S. 372, 19 S. Ct. 222, 43 L. Ed. 482; Phoenix Bridge Co. v. United States, 38 Ct. Cl. 492; Cannon v. Hunt, 113 Ga. 501, 38 S. E. 983; Harley v. Sanitary Dist., 226 Ill. 213, 80 N. E. 771; Brent v. Head &c. Co., 138 Ia. 146, 115 N. W. 1106, 16 L. R. A. (N. S.) 801; Stevens v. Lewis-WilsonHicks Co., 170 Ky. 238, 18 S. W. 873; Cook &c. Contracting Co. v. Denis, 124 La. 161, 49 So. 1014; Cowan v. Meyer, 125 Md. 450, 94 Atl. 18; Cochran v. People's R., 131 Mo. 607, 33 S. W. 177; McQuiddy v. Brannock,

70 Mo. App. 535; Carter v. Root, 84 Neb. 723, 121 N. W. 952; Ward v. Hudson River Bg. Co., 125 N. Y. 230, 26 N. E. 256; Sands v. Quigg, 111 Va. 476, 69 S. E. 440; Reichenbach v. Sage, 13 Wash. 364, 43 Pac. 354, 52 Am. St. 51; Cockshutt Plow Co. v. Alberta Bg. Co., 3 Alberta L. R. 503. See also Jones v. St. John's College, L. R. 6 Q. B. 115, with which compare Dodd v. Churton, [1897] 1 Q. B. 563; Bentley v. State, 73 Wis. 416, 41 N. W. 338.

23 Usrey Lumber Co. v. Huie-Hodge Lumber Co., 135 La. 511, 65 So. 627. See also as to carrier's contracts, supra, § 1099.

24 Krause v. Board of Trustees, 162 Ind. 278, 70 N. E. 264, 65 L. R. A. 111, 102 Am. St. Rep. 203; Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667, 25 Am. St. Rep. 654. The decision of Chapman v. Beltz, 48 W. Va. 1, 35 S. E. 1013, and dictum in Weis v. Devlin, 67 Tex. 507, 510, 3 S. W. 726,