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IMPOSSIBILITY AS A DEFENSE TO THE PERFORMANCE OF A Contract.The title of "Impossibility" to designate a class of defenses for the nonperformance of contracts, though custom has now made its use mandatory, is a most unfortunate one, for there never has been a time in the history of the common law when the simple impossibility of performing a contract excused the promisor from liability thereunder; while, on the other hand, by far the greater number of cases collected under this head are not cases of actual impossibility at all. What, therefore, the title really indicates is that there are some instances in which a party will be excused from carrying out his promise because it has become more difficult for him to do so than it was at the time the promise was made.

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These instances in the early common law were few, because the courts took the position that a party could have provided against such contingencies by the terms of his contract.2 In the course of time, however, they have greatly increased in number, and are now usually collected under the three general heads of impossibility created by domestic law, by destruction of the subject-matter of the contract, and by sickness, insanity, or death of a party to a contract of personal services. The reason universally assigned by the courts for excusing performance in these cases is that the proper interpretation of the contract shows that the parties did not intend to be bound on the happening of the excusing contingency. Thus, in the very instances where the promisor was formerly held liable for not providing against the event by his contract, he is now excused because of an implied condition in his favor in that same contract. The old rule was logical, though it often worked great injustice; the new rule is made to bring about a desirable result, but is based on entirely untenable premises, for it seems clear that the doctrine of implied intention is a pure fiction. Sir Frederick Pollock has said that any evidence of intention is so seldom forthcoming in these cases that the court relies on its own view of what the parties ought to have intended. The simple truth of the matter is that the cases show that these defenses are allowed on the equitable ground that conditions have so changed between the time of contracting and the time for performance that it would be unjust to compel performance. This is also shown by the fact that the defense must be set up affirmatively, and that, if the so-called impossibility could have been foreseen, it is no excuse."

The equitable nature of this defense is further emphasized by the comparatively recent extension of it to cases where, not the subject-matter of the contract, but the means of performing it has been destroyed,' and, also, to cases where performance of a contract for personal services has become dangerous to life or health. An illustration of the latter extension is found in a late case where an English sailor was held justified in leaving his

1 Y. B. 22 Edw. IV., pl. 26; Reid v. Alaska Packing Co., 43 Ore. 429.

2 Paradine v. Jane, Al. 26.

8 See Anson on Contracts, 10th ed., 342.

4 Wald's Pollock on Contracts, 3d ed., 519.

5 Clarksville Land Co. v. Harriman, 68 N. H. 374. To be accurate, it should be said that there are two distinct classes of cases in which difficulty imposed by law is held to be a defense. If the very act which the promisor agreed to perform is declared illegal, the ground of the defense is public policy. Cordes v. Miller, 39 Mich. 581. But if, as is commonly the case, the statute simply makes the performance of a perfectly legal act impossible or difficult, the defense rests on the same equitable basis as in the other two general classes. Bailey v. De Crespigny, L. R. 4 Q. B. 180.

6 Jennings v. Lyons, 39 Wis. 553

7 Buffalo, etc., Land Co. v. Bellevue, etc., Co., 165 N. Y. 247.

ship upon learning that it was laden with contraband of war. Sibbery v. Connelly, 22 T. L. R. 174 (K. B. D. Dec. 18, 1905). This was no case of actual impossibility, nor can any implied intention be found; but conditions had totally changed since making the contract, and a reasonable man would have been justified in declining to assume the increased risk.

RECENT CASES.

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ADVERSE POSSESSION WHO MAY GAIN TITLE · POSSESSION UNDER CLAIM OF RIGHT AGAINST ALL BUT SOVEREIGN. Public land was granted to a railroad company under which the defendant claims as grantee. Subsequently the plaintiff entered upon the land, intending to acquire title from the government under the Timber Culture Act. He remained in possession until the statute of limitations had run, and then brought an action to quiet his title. Held, that to constitute adverse possession a claim of right against all but the government is sufficient, and the plaintiff's title is therefore good. Blumer v. Iowa Land Co., 105 N. W. Rep. 342 (Ia.).

For a discussion of the principles involved, see 18 HARV. L. REV. 380.

AGENCY DISCLOSED PRINCIPAL'S RIGHTS AND LIABILITIES UNDER AGENT'S CONTRACTS WITH THIRD PERSONS. A document signed by the defendants stated that as deacons of a church they invited the plaintiff to the pastorate at a specified salary. "We regret to state that our present income will not warrant anything higher now, but," etc. The plaintiff, upon acceptance, acted as treasurer, and out of the surplus of funds on hand paid himself his salary. Held, that, as on the face of the contract the plaintiff had pointed out to him the fund out of which he was to be paid, the defendants are not personally liable. Morley v. Makin, 22 T. L. R. 7 (Eng., K. B. D., Oct. 26, 1905). See Notes, p. 456.

ANIMALS - DAMAGE TO PERSONS BY ANIMALS WHAT AMOUNTS TO KEEPING AND HARBORING A DOG. The plaintiff, who was bitten by a vicious dog at large upon the street, brought action against the defendant. The defendant was not the owner of the dog, but permitted her porter, who worked upon her premises, to keep it thereon, both having knowledge of its vicious propensities. The jury found for the plaintiff. Held, that the question whether the defendant kept or harbored the dog was properly submitted to the jury, and that the verdict will not be disturbed. Barklow v. Avery, 89 S. W. Rep. 417 (Tex., Civ. App.).

Even at common law one who keeps or harbors a vicious dog, knowing its vicious propensities, seems to be responsible for its actions, although he is not the owner. M'Kone v. Wood, 5 C. & P. 1; Bundschuh v. Mayer, 81 Hun (N. Y.) III. But now this liability is quite generally imposed or defined by statute. Yet precisely what constitutes "keeping or harboring" has been usually left to the courts to define. In a few cases the language used by the court would sustain the rule that merely to permit the dog to remain upon the premises constitutes a "harboring." Jacobsmeyer v. Poggemoeller, 47 Mo. App. 560. But the better and generally accepted rule seems to be that the question is one of fact for the jury, who are to decide it in the light of all the evidence. Whittemore v. Thomas, 153 Mass. 347. And the test usually given them is that the dog must have been in the possession or control of the defendant as a domestic animal. Cummings v. Riley, 52 N. H. 368. Or, if kept by servants or agents, the dog must be kept in some sense for the defendant's benefit. Baker v. Kinsey, 38 Cal. 631; Collingill v. City of Haverhill, 128 Mass. 218.

8 See Walsh v. Fisher, 102 Wis. 172, 179.

BANKS AND BANKING COLLECTIONS - CHECK SENT TO DRAWEE BANK FOR COLLECTION. The plaintiffs deposited a check with the defendant bank for collection, and the latter forwarded it in accordance with the usual custom of the locality to the drawee bank. In payment, the latter sent New York exchange, which owing to its subsequent insolvency was not honored. Held, that the custom is unreasonable and will not relieve the defendant from liability for any damages resulting from its action. Farley National Bank v. Pollock & Bernheimer, 39 So. Rep. 612 (Ala.).

Whether the collecting bank is regarded as an agent, or, according to a sounder view, as a trustee of the claims against the debtor for the benefit of the depositary bank, the Alabama decision is clearly right. Under either relation, one of the depositary bank's duties to the depositor is to select its correspondent with due care. German Nat. Bank v. Burns, 12 Col. 539. Though the drawee bank is not liable to the holder of an uncertified check, its adverse interests to the drawer make it probable that the duties following presentment and dishonor of a check drawn on itself will not be diligently exercised; therefore it is not a suitable correspondent to select for that purpose. American, etc., Bank v. Metropolitan, etc., Bank, 71 Mo. App. 451; contra, Indig v. National City Bank, 80 N. Y. 100. And since such selection is unreasonable, custom will not excuse it. American, etc., Bank v. Metropolitan, etc., Bank, supra; Prideaux v. Criddle, L. R. 9 Q. B. 455. A second ground for holding the defendant liable is that a bank has no authority to accept payment of a bill sent for collection in any form but money. Fifth National Bank v. Ashforth, 123 Pa. St. 212. If a bank does so accept, the depositor should have the right to treat the transaction as a collection and to charge the bank as a debtor. Fifth National Bank v. Ashforth, supra; contra, Russell v. Hankey, 6 T. R. 12. For a discussion of the general relationship on collection, see 18 HARV. L. REV. 300.

CARRIERS DISCRIMINATION AND OVERCHARGE CARRIER ACTING AS DEALER. The Chesapeake and Ohio Railroad contracted to deliver coal at the rate of $2.75 a ton to the New Haven Railroad. This price was less than the cost of the coal at the mines plus the published rates of transportation of the Chesapeake and Ohio from the mines to the point of delivery. Held, that as this difference must be considered a rebate from the published tariff, the contract is violative of the prohibitions of the Interstate Commerce Act against personal discrimination; and decreed that the Chesapeake and Ohio be perpetually enjoined from taking less than the rates fixed in its published tariff, by means of the purchase and sale of coal. New York, etc., R. R. v. Interstate Commerce Commission, U. S. Sup. Ct., Feb. 19, 1906. See NOTES, P. 453.

CHARITIES

RIGHTS AND LIABILITIES OF CHARITABLE ORGANIZATIONS - TO WHAT CHARITABLE ORGANIZATIONS THE EXEMPTION FROM LIABILITY FOR NEGLIGENCE EXTends. The defendant university was by its charter required to hold all its property solely for the purpose of the education of all fit applicants, and not for its own profit. The plaintiff, who had paid a tuition fee to become a student at the defendant university, lost his eye through the negligence of a professor of the defendant. Held, that the defendant, having been chartered solely for an object within the Charitable Uses Act, is not liable for the negligence of its servants. Parks v. Northwestern University, 75 N. E. Rep. 991 (Ill., Sup. Ct.).

The general rule is that charitable corporations are not answerable for the negligence of their servants. For a discussion of the application of this rule to the case of hospitals, see 16 HARV. L. REV. 530. The present case applies to this rule the definition of a charity found in the Charitable Uses Act. As this definition is broad in its scope, it will hardly meet with approval from courts which have shown a tendency to limit the rule. Cf. Chapin v. Holyoke Y. M. C. A., 165 Mass. 280. For an article opposing the adoption of the definition applied in the principal case, and reviewing the decisions in point, see I LAW 645.

CONFLICT OF LAWS-TESTAMENTARY SUCCESSION VALIDITY OF TRUST PERFORMABLE OUTSIDE OF JURISDICTION OF ITS CREATION. — A testator, domiciled in New York, bequeathed property to the Bishop of Utah and his successors in office, in trust to acquire land in Utah and to erect a church and rectory thereon to become the property of the Protestant Episcopal Jurisdiction. By the law of Utah the bequest is void because of the indefiniteness of the beneficiaries; by the law of New York, where the common law has been changed by statute (Laws 1893, c. 701), the trust is valid. Held, that the law of Utah governs and the bequest is therefore invalid. Mount v. Tuttle, 34 N. Y. L. J. 1375 (N. Y., Ct. App., Jan., 1906). See NOTES, p. 457.

- ANNEXATION OF CITIES.

The

CONSTITUTIONAL LAW - SPECIAL LEGISLATION An act passed by the Pennsylvania Assembly provided that "when two cities are contiguous and in the same county, the smaller may be annexed to the larger." It was further provided that, "for the purposes of this act, cities separated by a stream, river, or highway shall be included under the term 'contiguous.' It appeared that the cities of Pittsburg and Allegheny, separated by the Allegheny River, were the only two contiguous cities in the state. city of Pittsburg instituted proceedings to annex the city of Allegheny in accordance with this act. The plaintiffs, citizens and tax-payers of Allegheny, brought a bill to restrain such proceedings on the ground that the act was in violation of the provision of the state constitution prohibiting special laws regulating the affairs of cities. Held, that the plaintiffs are entitled to the injunction. Sample v. Pittsburg, 62 Atl. Rep. 201 (Pa.).

The court found that the act applied to a special existing state of facts. The clause that cities are contiguous although separated by a river reinforced their position. If an act can apply to but one section in the state, within the range of probabilities, the legislation is special. State v. County Court of Jackson Co., 89 Mo. 237. When, however, the act is general in its scope, the fact that there is only one situation to which it can apply at the time it is passed does not make it unconstitutional when there is probability that there will be other situations which will come under its terms. Heinzinger v. State, 39 Neb. 653. In view of the defendants' answer that there are two towns which are likely to become contiguous cities in the near future, the court might well have construed the act prospectively, and held it constitutional. Cf. Treanor v. Eichhorn, 74 Hun (N. Y.) 58. The court, however, considered this a remote contingency. For a full discussion of the principles involved and the wisdom of such a constitutional provision, see 18 HARV. L. REV. 588.

CONSTITUTIONAL LAW-VESTED RIGHTs - Mode of Settling Bill of EXCEPTIONS. Before the plaintiff's bill of exceptions was settled the trial judge died. As the law then stood, the excepting party was entitled to a new trial, but a statute, enacted while the suit was pending, provided that any judge of the supreme court might allow exceptions in a case tried by a deceased judge. Held, that as the plaintiff has no vested right to a new trial under the law as it stood at the time of the trial, the act may apply to the pending case. Johnson v. Smith, 62 Atl. Rep. 9 (Vt.).

Despite a contrary, unsatisfactory Michigan decision, this case seems clear. See People v. Judge, 40 Mich. 630. The denial of the existence of vested rights in matters relating to the enforcement of a cause of action is a commonplace of constitutional law. A consideration of the nature of a bill of exceptions renders obvious that it involves a matter pertaining to the remedy and not to the right. Mason v. Phelps, 48 Mich. 126. Such a bill is a formal statement by which objections to rulings are raised before an appellate court. The bill should be settled by the presiding justice; but when he is incapacitated or has died before settlement, various rules prevail. See 3 ENCYCL. PR. & PROC. 455. In some states, as was the practice in Vermont derived from England, a new trial is granted as of course. Others allow the successor in office of the ex-judge to settle the bill; while in a few states a transcript of the stenographer's minutes is used. In changing the prevailing method of adjustment by permitting some

other judge to allow the exceptions, the very right of appeal sought by the exceptant is secured and he cannot insist on a fortuitous new trial. Similarly, a statute abolishing the right to a second trial to a losing party in existing causes of action has been sustained. People ex rel. Long v. District Court, 28 Col. 161. In fact, the so-called right of appeal itself, even in cases that have gone to judgment, is a privilege that may be abrogated in the absence of express constitutional inhibitions. See Ryan v. Waule, 63 N. Y. 57; Railroad Co. v. Grant, 98 U. S. 398.

CONSTRUCTIVE TRUSTS EFFECT OF STATUTE OF FRAUDS CONVEYANCE INTER VIVOS UPON ORAL TRUST. - A purchased land, taking the deed in the name of B, who promised verbally to hold the land in trust for C. After A's death B's devisee refused to carry out the trust. Held, that C can enforce the trust against B's devisee. Smoke v. Smoke, 11 Va. L. Reg. 747 (Va., Cir. Ct., Nov., 1905).

This decision was based upon the ground that the grantee, having title to land not rightfully his own, became constructive trustee for the intended beneficiary, thus taking the case out of the Statute of Frauds. Such a holding can scarcely be supported on principle or authority. Cf. Campbell v. Brown, 129 Mass. 23. To hold that the trustee's mere refusal to perform his oral agreement transforms the express cestui into a constructive cestui would work a substantial abrogation of the Statute of Frauds. Any constructive trust arising out of such a refusal should be in favor of the settlor or his heirs, and such is the English rule. Rochefoucauld v. Boustead, [1897] 1 Ch. 196. The corresponding American rule, while recognizing no constructive trust, allows the settlor to recover the value of the land conveyed. Moore v. Horsley, 156 III. 36; Nugent v. Teachout, 67 Mich. 571. Where, however, a devise of land is made upon oral trust, the trust is enforceable in favor of the intended cestui. Gilpatrick v. Glidden, 81 Me. 137. In support of this palpable violation of the Statute of Frauds it has been urged that a constructive trust in favor of the heirs would defeat the devisor's purpose. As the settlor in the present case had died, the above analogy, though anomalous, may afford some support for the decision.

CONTRACTS DEFENSES: FRAUD — RECOVERY BY SERVANT GUILTY OF WILFUL BREACH NOT GOING TO ESSENCE OF CONTRACT. · The plaintiff in his capacity of manager of the defendant's farm intentionally sent in garbled accounts of his running expenses. Held, that the plaintiff cannot recover, on the ground that "a wilful default in the performance of a stipulation not going to the essence of the contract bars a recovery." Sipley v. Stickney, 76 Ñ. E. Rep. 226 (Mass.).

Most courts refuse to give a servant who has committed a wilful breach going to the essence of his contract of service any compensation, either on the contract or on a quantum meruit. Lantry v. Parks, 8 Cow. (N. Y.) 63; contra, Britton v. Turner, 6 N. H. 481. In view of the fact that a very slight act of dishonesty is ordinarily much more dangerous to the future of the contract than any other sort of default, even though wilful, these courts generally make it a rule that even the least dishonesty necessarily so goes to the essence of the contract as to bar recovery. Libhart v. Wood, I Watts & S. (Pa.) 265. It would seem, therefore, that the Massachusetts court, which supports the majority view, might properly on this reasoning have refused redress. Cf. Homer v. Shaw, 177 Mass. I. But the opinion expressly waives this possibility, and bases itself squarely on the ground that the breach, though non-essential, nevertheless, being wilful, precludes recovery. The farthest that previous decisions have gone is to refuse wages to a servant discharged for an act of wilful disobedience which, though essential, did not injuriously affect the future of the contract. Jerome v. Queen City Cycle Co., 163 N. Y. 351; Beckman, Jr. v. Garrett, 66 Oh. St. 136. The present decision goes a dangerous distance beyond these; and it is doubtful whether the Massachusetts court would follow its doctrine if the breach, though intentional, were absurdly trivial. The materiality of the servant's breach, being the criterion of his value, should furnish the primary test for the master's