Page images
PDF
EPUB

19 Ill. 519, whether, where a party agrees to do an act at a future time, and before the day arrives he declares he will not keep his contract, the other party may act on such declaration and bring an action before the day arrives; and it was held that he may.

*

*

*

**

(Quoting from an English case) "The notice (that he will not receive the wheat) amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the meantime, and rescinds the contract.' * 'He keeps the contract alive for the benefit of the other party as well as his own, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstances, which would justify him in declining to complete it.'

[ocr errors]

*

If appellees (Y.) had then the barley on hand and had acted on appellant's notice, and accepted and treated the contract as then broken, it would, doubtless, then have been their duty to have resold the barley upon the market, precisely as they did in January, and have given the appellants credit for the proceeds of the sale.

Question 182: What does the Court decide in this case with reference to the necessity of acting upon an anticipatory breach, and the consequences ensuing upon either a failure to so act, or such action?

CHAPTER 21

DISCHARGE OF CONTRACTS BY OTHER MEANS

THAN PERFORMANCE OR BREACH

§ 170. Discharge by impossibility of performance.
§ 171. Discharge by alteration of written instrument.
§ 172. Discharge by novation.

§ 173. Discharge by merger.
§ 174. Discharge by agreement.
§ 175. Discharge in bankruptcy.

§ 176. Discharge by statute of limitations.

§ 170. (Contracts, Sec. 138.) Discharge by impossibility of performance.

Case 183. Walker v. Tucker, 70 Ill. 526.

Facts: Contract to work a certain coal mine during the continuance of a lease, in a good and workmanlike manner. Breach alleged and suit brought thereon. Plea by the defendant to the effect that the working of the mine had become a hardship and unprofitable.

Point Involved: Whether hardship and burden caused by performing a contract is an excuse for its non-performance? What constitutes impossibility?

The plea alleges

MR. JUSTICE SCHOLFIELD: 66* that 'on the said 15th day of September, 1871, the mines became and were wholly exhausted and incapable of yielding, when worked in a good and workmanlike manner, and with reasonable skill, care, diligence and energy, sufficient coal for working said mines,' etc. If the plea had stopped short, after alleging that the mines became and were wholly exhausted, it would have been good, but the subsequent qualification shows that these words do not mean exhausted of coal, but only exhausted of such coal as was capable of yielding, 'when worked in a good

and workmanlike manner, and with reasonable skill, care, diligence, and energy, sufficient coal for working said mines.' This might be, and yet the most valuable portion of the mine remain untouched. Courts must enforce contracts as the parties make them.

*

There is nothing in this instrument which authorizes a suspension or abandonment of mining because it has become unprofitable.

[ocr errors]

Question 183: What was the defense in this suit? Did it prevail? What plea would have prevailed? Is the fact that a contract becomes unprofitable an excuse for not performing

it?

Case 184. Yerrington v. Green, 7 R. I. 589.

Facts: Contract to employ plaintiff as clerk and agent of business in New York and Philadelphia for a certain period. Death of the employer. Suit by the employee against the administrators of the employer.

Point Involved: Whether the death of the employer discharges the contract of employment.

BY COURT, AMES, C. J.: It is in general true that death does not absolve a man from his contracts; but that they must be performed by his personal representatives, or their non-performance compensated out of his estate. An exception to this rule, equally well established at both the civil and common law is, that in contracts in which performance depends upon the continued existence of a certain person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance. The implication arises in spite of the unqualified character of the promissory words, because, from the nature of the contract, it is apparent that the parties contracted upon the basis of the continued existence of the particular person or chattel. The books afford many illustrations of this reasonable mode of construing contracts, de certo corpore, as the civil law designation of them is, in furtherance of the presumed and probable intent of

the parties. The most obvious cases are the death of a party to a contract of marriage before the time fixed by it for the marriage; the death of an author or artist before the time contracted for the finishing and delivery of the book, picture, statue, or other work of art; the death of a certain slave promised to be delivered, or of a horse promised to be redelivered, before the day set for delivery or redelivery; and the death of a master or apprentice before the expiration of the term of service limited in the indentures. The bodily disability from supervening illness, as of an artist, from blindness, to paint the picture contracted for, or of a scholar to receive the instruction his father had stipulated should be received and paid for, has been held, for the like reason, to excuse each from the performance of his contract: Hall v. Wright, 1 El. B. & E.; Stewart v. Loring, 5 Allen, 306. The cases in support of these, and other illustrations of the exception to the general rule, are set down in the defendant's brief, and it is unnecessary to repeat them. Both at the civil and the common law, it is necessary that the party who would avail himself of this excuse for non-performance of the contract should be without fault in the matter upon which he relies as an excuse. The latest and most instructive case upon this subject, so far as the discussion of the principle of decision is concerned, is that of Taylor v. Caldwell, decided by the queen's bench in May last, 8 L. T., N. S., 356. In that case it was held that the parties were discharged from a contract to let a music hall for four specified days for a series of concerts, by the accidental destruction of the hall by fire before the first day arrived. The full and lucid exposition by Mr. Justice Blackburn, who delivered the opinion of the court, of the prior cases, and of the principle upon which they had been decided, leaves nothing further to be desired. upon this subject.

Does the case at bar fall within the general rule or within the exception we have been considering? This must depend upon the nature of the contract-whether

one requiring the continuing existence of the employer, Keach, for performance on his part, or one which could, according to its spirit and meaning, be performed by the defendants, his administrators. The contract was

to employ the plaintiff as clerk and agent of the intestate in his business in New York and Philadelphia; and it seems to us undoubted that the continued existence of both parties to the contract proceeded, and if called to their attention at the time of contract, must have been contemplated as such by them. The death of the plaintiff within the three years would certainly have been a legal excuse from the further performance of his contract; since it was an employment of confidence and skill, the duties of which, in the spirit of the contract, could be fulfilled by him alone. If this be the law in application to a covenant for ordinary service (Shep. Torch. 180), how much more in application to a contract for service of such confidence and skill as that of a clerk and agent for sale. On the other hand, this employment could continue no longer than the business in which the employer was engaged and the plaintiff retained. The intestate, when living, could by the contract have required the services of the plaintiff in no other business than that in which he had engaged him, and with no other person than himself. It would seem, then, necessarily to follow, that when the death of the employer put a stop to this business, and left no legal right over it in the administrators, except to close it up with the least loss to the estate of their decedent, they were, by the contract, bound no longer to employ the plaintiff, any more than he to serve them. The act of God had taken away the master and principal-the law had revoked his

agency, and stopped the business to which alone his contract bound him; and if he would serve the administrators in winding up the estate, it must be under a new contract with them, and under renewed powers granted by them. Any other result than that this contract of service was upon the implied condition that the employer, as well as the employed, was to continue to live during

« PreviousContinue »