does not, as a rule, excuse from performance. *** If the promisor makes his promise unconditionally, he takes the risk of being held liable even though performance should become impossible by circumstances beyond his control."1 In Baily v. De Crespigny,' Hannen, J., says: "A man may by an absolute contract bind himself to perform things which subsequently become impossible, or to pay damages for the non-performance, and this construction is to be put upon an unqualified contract when the event which causes the impossibility was, or might have been, anticipated and guarded against in the contract, or when the impossibility arises from the act or default of the promisor."

Some of the cases cited in support of this rule are cases of alternative contracts, to do one of two things. In such contracts, as has been previously shown, the principle is that if one of the alternatives becomes impossible of performance, the obligation of the promisor is concentrated upon the other which is also promised.3 Thus a contract to load or unload a ship within a certain time or to pay demurrage, is alternative, and the impossibility of unloading at the time concentrates the obligation of the promisor upon the payment of demurrage.

Other decisions relied on are cases where there is merely an impossibility of performing at the time stipulated, but no impossibility of performance afterwards, such as the destruction of a building by fire or flood in the process of erection which does not relieve the contractor from the obligation to rebuild afterwards.* So the liability of a tenant to pay rent is not affected by the destruction of the demised

1 Anson, Contracts (10th ed.), 341. And Pollock says, Contracts, 410: "It is admitted law that generally where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burdensome or even impossible."

2 L. R. 4 Q. B. 180.

3 Ante, pp. 353-360.

4 See post, sec. 192.

property, because that does not make it impossible for him. to pay the rent.5

There are, however, some cases which enforce this rule as to subsequent impossibility in all the rigor of its unfairness. Thus where the defendant agreed to take a ship to a certain island and there load a complete cargo of guano, it was held that he was not relieved from liability because there was not enough guano on the island to make up a cargo.

6

A ship owner agreed to take a cargo to a certain port and there deliver it, and it was held to be no excuse that the goods were confiscated by a foreign power at that port.7

Where a bond was given for the return of a vessel at a time named "in as tight, staunch and good condition as she now is, reasonable wear and tear excepted," the surety was held liable on the bond for its non-return, although the vessel had been destroyed by a gale. The Court said: "The principle is that the party must perform his contract, and if loss occurs by inevitable accident, the law will let it rest upon the party who has contracted that he will bear it. * * * The party contracting assumes the responsibility for the consequences that may follow, if for any reason whatever he may be unable to perform his contract. He is an insurer to the extent of making good the loss."8

Sir W. Anson classifies the exceptions to this rule as follows: (1) Legal impossibility arising from a change in the law of our own country exonerates the promisor. (2) When the continued existence of a specific thing is essential to the

5 Wagner. White, 4 H. & J. 564; Stubbings r. Evanston, 136 Ill. 37. It is otherwise when apartments in a building are leased. Graves v. Berdan, 26 N. Y. 498; Bank v. Boston. 118 Mass. 125; Humiston v. Wheeler, 175 Ill. 514.

6 Hills. Sughrue, 15 M. & W. 233.

7 Spence v. Chadwick, 16 L. J. Q. B. 313. In Taylor v. Taintor, 16 Wall. 366, it was held (three Justices dissenting), that if a bailbond is conditioned for the appearance of a certain person at a particular time, his non-appearance is not excused by the fact that he was subsequently arrested and imprisoned in another State.

8 Steele r. Buck, 61 Ill. 343.

performance of the contract, its destruction from no default of either party operates as a discharge. (3) A contract which has for its object the rendering of personal services is discharged by the death or incapacitating illness of the promisor.

I venture to submit that the gradually extended application of these exceptions have killed the rule if ever it was the rule as thus broadly stated. It is always allowable for the Court to imply the continued possibility of performance as the condition of the contract, as a part of their unexpressed intention. Justice obviously demands that such implication should be made unless contrary to the intention of the parties.

$ 190. The True Principle as to Subsequent Impossiblity appears to be that when a party promises to do something at a future time, a subsequent impossibility of performance which is absolute and not merely relative or personal and not owing to his fault, discharges the liability unless, upon a fair construction of the contract, the promisor can be held to have guaranteed or warranted that performance would be possible, or to have agreed to be responsible for a non-performance. This implication is not to be made merely because a contract is absolute in its terms, or because, as was said above, "the impossibility might have been anticipated or guarded against." Any impossibility might have been anticipated or guarded against.

Assuming risk. The obligation to be responsible if performance becomes impossible will be implied when that risk would have been put on the promisor at the time the contract was made if the matter had been thought of by the parties, or such appears to have been the intention of the parties.1

Thus where a man charters a vessel for a particular pur pose, since he selects that purpose and "chalks out the voyage," the owner giving the use of his ship, the charterer

1 Northern Pac. R. Co. v. Am. Trading Co., 195 U. S. 439.

is properly held to be liable if the object of the voyage can not be achieved. Under a charter party which provided that the vessel should proceed to the Lobos Islands for a cargo of guano, the contract is not dissolved, nor the charterer excused from liability for non-performance because the Peruvian government refused to permit the vessel to anchor, or to take guano from these islands, there being no saving clause in the contract to meet such a contingency.2 Commercial intercourse with the port to which a ship was chartered was prohibited on account of an epidemic prevailing there, so that no cargo could be furnished, and yet the charterer was held to be liable on his undertaking to furnish one. The reason given for this was that the freighter was the adventurer who chalked out the voyage and the burden of the loss resulting from the prohibition by foreign law should be thrown upon him.

3

If the owner of an elevator has agreed to receive a certain quantity of grain, it is no excuse for failure to do so, that the storage capacity of the elevator has been taken up by third parties.*

When a charter party requires a vessel to be unloaded within a definite fixed time, it is held that the charterer assumes the risk of impossibility of performance at that time arising from the crowded condition of the docks, from a tempest or from any other unforeseen cause.5 But if under the contract the charterer has agreed to unload within a reasonable time, or according to the custom of the port, or with all despatch, then an impossibility of unloading within the customary time caused by crowded docks, or a strike, etc., is an excuse.6

2 Benson v. Atwood, 13 Md. 20.

3 Barker v. Hodgson, 3 M. & W. 267, approved in The Harriman, 9 Wallace, 173. See also, Jacobs v. Credit Lyonnais, 12 Q. B. D. 589. 4 Chicago, etc., R. Co. v. Hoyt, 149 U. S. 1.

5 Whitehouse v. Halstead, 91 Ill. 95; Williams v. Theobald, 15 Fed. R. 465; Thiis v. Byers, 1 Q. B. D. 244.

6 Postlethwaite v. Freeland, L. R. 5 App. C. 621; Hick v. Raymond [1893], App. Ca. 22; Empire Transp. Co. v. Phil. & R. Coal, etc., Co.. 40 U. S. App. 157; 35 L. R. A. 623.

§ 191.

Implication of Continued Possibility of Performance. The maxims, lex cogit ad impossibilia and, ad impossibile nemo tenetur, as applied to contracts, mean that the subsequent impossibility of performance which liberates the promisor must not only be an insurmountable obstacle but its existence must also not be attributable to his default.1 An absolute impossibility is created by some unavoidable accident or vis major, or the act of a third person, or of the public authorities. An earthquake, floods, wars, blockades, robbery may create this impossibility. But one who seeks to escape liability for this reason must also show that he was not himself at fault. Thus if a man has agreed to sell a particular object, its accidental destruction by fire or loss by theft discharges the contract. But if he retains an article unlawfully its accidental destruction does not liberate him. A wrongdoer is always in mora. If the promisor neglects to perform within a reasonable time, during which performance was possible, he is liable although performance becomes impossible afterwards.2

Illustrations. A contract provided that A. should drive logs down a stream to the Connecticut River for B. Before A. had a reasonable time in which to do so, the water in the stream suddenly fell and remained so low that further performance of the contract during the season contemplated was made impossible. This was held to be an excuse for nonperformance, because the contract did not contemplate that A. should transport the logs in any way except down the stream. The Court said: "If the parties contemplated the failure of the water in the stream and contracted with reference to it, and it was agreed that the plaintiffs were to guarantee its sufficiency for driving logs, then they were not

1 Art. 1148 of the Code Napoleon provides: "No damages for a breach are recoverable when, in consequence of ris major or accident, the promisor has been prevented from delivering or doing that which he promised, or has done that which was forbidden."

2 Arthur v. Wynne, 14 Ch. D. C03; 49 L. J. Ch. 557.

3 Clarksville L. Co. v. Harriman, 68 N. H. 375. See also, Keystone Co. v. Dole, 43 Mich. 370; Herter v. Mullen, 159 N. Y. 28.