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tract, but will only be a cause of action for compensation in damages."

In another case, an opera singer, after having attended the rehearsals, was too ill to appear on the opening night of her engagement, and did not offer her services until a week later. It was held that such inability was a breach going to the root of the consideration and that the manager was justified in rescinding the contract by which the singer was engaged for the season and in engaging another performer.5 The court said: "The analogy is complete between this case and that of a charter party in the ordinary terms, where the ship is to proceed in ballast (the act of God, etc., excepted) to a port and there load a cargo. If the delay is occasioned by excepted perils the shipowner is excused. But if it so great as to go to the root of the matter, it frees the charterer from his obligation to furnish a cargo."

A. agreed to saw a certain quantity of logs for B. and also agreed not to saw logs for other persons without B.'s consent. After part performance A, began to saw logs for others without B.'s consent, but his doing so did not prevent him from sawing all the logs delivered by A. It was held that this breach of the contract did not entitle B. to rescind the whole agreement and refuse to make further deliveries, since it was the breach of an independent or subsidiary stipulation.7

A further illustration of a subsidiary promise is found in a case where the contract for the sale of a farm provided that the vendor should build a barn and deliver possession by a given day, and it was held that the failure to complete the barn at the given time did not justify a rescission.s

When time is not of the essence of the contract, as, for example, in a charter party providing that the vessel shall proceed to a port "with all convenient speed," then, if the

5 Poussard v. Spiers, 1 Q. B. D. 410.

6 Citing Jackson v. Union Marine Ins. Co., L. R. 10, C. P. 141.

7 Reindle v. Heath, 115 Wis. 219. See also, Hoffman v. King, 70 Wis. 379.

8 Weintz v. Hafner, 78 Ill. 27.

delay does not frustrate the object of the contract, the stipulation as to time is a subsidiary promise to be compensated for in damages only.

If A. agrees to lend money on mortgage upon the completion of a building which B. agrees to complete by a designated time, the stipulation as to time is subsidiary; and in the absence of an express agreement to that effect, A. is not entitled to repudiate the agreement because the building was not finished at that time.10

9 Tarrebochia v. Hickie, 1 Hurl. & N. 183.

10 Holt v. United Security Co. (72 Atl. 312), 76 N. J. L. 585.

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§ 187.

CHAPTER IV.

IMPOSSIBILITY OF PERFORMANCE

Different Kinds of Impossibility. When a promisor seeks to escape from liability under the contract on the ground that its performance was impossible, it is important to distinguish between an impossibility existing at the time of making the contract and an impossibility subsequently arising. If the impossibility existed at the period of the formation of the contract, a further distinction is to be noted between an external, physical or legal impossibility, (an objective impossibility) and a merely subjective impossibility.

An objective impossibility existing at the time the parties came to an agreement prevents the formation of a contract because it is an unreal consideration. Impossibilium nulla obligatio est. An objective impossibility exists when the promise is to do something, either impossible for any one to perform, or forbidden by law. A legal prohibition might also be regarded as making the contract void under the doctrine of illegality of object.

A contract for the sale of

§ 188. Existing Impossibility. an article which, at the time, has ceased to exist, is an example of an objective impossibility, but such a contract is also void upon the ground of mistake. In Clifford v. Watts,1 the defendant, a lessee, covenanted to dig from the demised premises not less than 1,000 tons of potter's clay annually, and it was held that the fact that there was not so much as 1,000 tons of clay under the land was a good answer to an action for the breach of the covenant. "They agree," said the court, "on the assumption it is there; and the covenant is applicable only if there be clay."

1 L. R. 5, C. P. 577. See also, Brick Co. r. Pond, 38 Ohio St. 65; Switzer . Pinconning Mfg. Co., 59 Mich. 488.

In a lease of a mine of iron ore, the lessee covenanted to pay 35 cents for every ton raised, and also agreed to raise at least 1,500 tons of ore annually, "or in default thereof to pay a royalty of $525 annually." In an action for two years' royalty the defence was that there was not so much ore under the ground. The court said: "The lessees were without doubt bound to prosecute the work without delay; it was their duty to search for and to find the ore and to ascertain its quality; and if ore in sufficient quantity and of proper quality could be found, they were to raise 1,500 tons of it annually; failing in either, they were bound for the minimum stipulated royalty, of $525 per year. If, however, it was established, by actual and exhaustive search, that at the time of the contract there was in fact no ore in the land, or no ore of the kind contracted for, it cannot be pretended upon any fair or reasonable construction of the contract, that the lessees were nevertheless bound for the 'royalty' of $525 annually; for the payment of the royalty was undoubtedly based on the assumption of the parties that ore of the quality specified existed there. The subject of sale, it is true, is the exclusive right to mine the iron ore, but for that right the lessors were to be compensated according to the number of tons of 'clean and merchantable iron ore' mined; the lessees undertaking to mine 1,500 tons annually, or in default thereof' to pay $525 royalty; and how could the lessees be in default in mining 1,500 tons annually if there was no ore to mine? We are not to construe the contract to require the lessees to perform an impossible thing."

But when a mining lease provides that, if a certain number of tons are not annually raised, then a given sum shall be paid, either as rent for the premises, or alternatively, the lessee is liable for the sum mentioned, and he takes the risk of there being no ore in the land.3

2 Muhlenberg r. Henning, 116 Pa. St. 138. See also, Woodworth v. McLean, 97 Mo. 325.

3 Clark . Glasgow Ass. Co., 1 Macq., H. L. C. 668; Bamford v. Lehigh Zinc Co., 33 Fed. Rep. €77; cf. Flynn . White Breast Co., 72 Iowa, 738. This is an alternative contract. See ante, Part v, ch. 2.

There seems to be one exception to the rule that a promise to do something legally impossible gives rise to no right of action, for it has been held that a promise of marriage, made by a married man to a woman, entitles her to sue for breach of the promise. It may be doubted if the reasons given for this exception are sufficient, and perhaps in such cases the injured party should have an action of deceit rather than an action for breach of contract.5

A subjective impossibility existing at the time of making the contract cannot be relied on by the promisor as a defence. Such impossibility is only relative, while an objective impossibility is absolute. The promisor is as fully liable for the breach of a promise impossible for him to perform, but not impossible for others, as if he had wilfully refused to perform it. "The clearest application of this rule is seen in the case of a debtor who promises to pay a sum of money which he neither has on hand nor can procure on credit. Money exists everywhere, and it is merely the personal situation of this debtor which prevents him from procuring it."

$ 189. The Old Rule as to Subsequent Impossibility. It is generally laid down in the books that when the impossibility of performance arises after the formation of the contract, such impossibility, whether absolute or relative, whether cwing to the fault of the promisor or not, is no excuse for his failure to perform. Thus, Sir W. Anson says: "Impossibility which arises subsequently to the formation of the contract

4 Millward v. Littlewood, 5 Ex. 775; Kelley r. Riley, 106 Mass. 339. But if the woman knows that the man is married there is no right of action. Paddock v. Robinson, 63 Ill. 99.

5 And it was so held in Pollocl v. Sullivan, 53 Vt. 507. In Dig. 45, 1, 35, 1, a promise to marry one's sister is given as an illustration of a promise to do something forbidden by law, and, therefore, creating no obligation. Pollock. Contracts, 106, puts the right of action in such case on the ground of implied warranty, saying: "A person who promises marriage also promises or warants that he is legally capable of marrying, and is, therefore, not less liable for a breach of the promise, though it may be questionable whether the actual promise to marry was not unlawful."

6 Savigny Obligationen i. § 37

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