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plaintiff and one G. G., plaintiff promised to sell founded upon it, be in its nature divisible so that and deliver to G. G., a lace machine for £220, to they are severable into parts, each part constibe paid in instalments as follows: £40 on deliv- tuting a valid contract with entire consideration, ery, and the residue by weekly payments of £1, and a part of the consideration failed or became which should be received by the defendant as impossible, the appropriate part of the contract trustee of the plaintiff; and if the weekly pay- could be apportioned to it, and what remained of ments should be stopped, the plaintiff would have the contract, supported by the valid considerathe right to take back the machine. In consider- tion, could be enforced and a recovery had. Thus ation of the premises, and the weekly payments in Ritchie v. Atkinson, 10 East, 295, the master received by him, defendant promised to take the and freighter of a vessel agreed in writing that machine, and pay the balance due. In an action the former should take the vessel with all conupon defendant's promise, it was held that the venient speed to St. Petersburg, and there load consideration was impossible, and the contract, a the vessel with a complete cargo of hemp and nudum pactum. The court says: “The declara- iron; and in consideration of the same the freighttion affects to show the legal operation er promised to pay freight at stipulated rates per of the agreement.

Now that states that ton. The master failed to bring a coinplete cargo, the agreement bound defendant to take the through alleged impossibility to obtain it. It was machine, not the plaintiff to deliver it. decided that the master could recover freight for The declaration does not

show that whatever cargo he brought at the stipulated rates, it was in the plaintiff's power to deliver the and that a delivery of a complete cargo was not machine, for it is not stated that he had ever got a condition precedent to such recovery. The it back from the original vendee. There certain- freighter had, of course, his right of action ly is an allegation of willingness to let the de- against the master for failure to deliver a comfendant take the machine; but that does not ap- plete cargo. In this case the contract could be pear to be in pursuance of any pre-existing divided up into as many smaller contracts agreement, nor does the whole import any obli- there were tons of iron and hemp, and the proper gation on the plaintiff to let the defendant take it. consideration apportioned to each. This being The declaration is therefore bad, no sufficient possible, it would have been clearly inequitable to consideration for the defendant's promise being have denied the right to sue for the freight earned shown."

by the delivery of a short cargo, while the freightGreat difficulty, like to that we have met with in er enjoyed the benefit of his carriage, and also cases of partial illegality of consideration, is expe- had his action of damages for failure to take in a rienced also in arriving at the correct conclusions in cases, where the impossibility refers only to a The action will be sustained upon similar part of the consideration. When there is a total grounds in other cases, where the part of the failure of the consideration, through impossibili- consideration, which has become impossible, does ty of performance, the promise clearly not go to the essence of the contract, and the connudum pactum. But when

of

par- sideration as a whole is substantially performed. tial impossibility of performance come Thus, where a party agreed to build a number of for consideration, questions of antagonistic inter- cottages by the 10th of October, and they were ests arise, the true solution of which is not so not completed until the 15th, the defendant was easy to find. Where the consideration is so com- held bound to pay for the value of the work and pact, so much of an entirety that it cannot be sep- materials. Lucas v. Godwin, 3 Bing. (N. C.) 746. arated into parts, so that the part which is capable In ail such cases, however, the defendant has the of performance can stand alone, it must necessa- right to set off the damages incurred by the parrily be the decision of the courts, that the whole tial failure of consideration; so that the correct contract is void. Thus, if a contractor agrees to rule is, that the plaintiff is not entitled to the pro repair a house, and, after considerable work had rata value of the work, estimated by the terms of been done upon the house, it was burned, and the contract, but to the agreed price, less such a the contractor prevented from completing the sum, as would be suflicient to complete the conhouse, be cannot recover for the work already tract. Thornton v. Place, 1 Moo. & Rob. 218; done. The repairs, as a whole, are so much of an Cutler v. Close, 5 Car. and P. 337; Chapel v. entirety, that they cannot be divided up into Hicke, 2 Cr. & M. 214; Allen v. Cameron, 3 Tyr. parts. Lord v. Wheeler, 1 Gray, 282. In this 907; Mondel v. Steel, 8 Mee. & W. 870; Farnscase the plaintiff was allowed to recover for work worth v. Garrard, 1 Camp. 38; Helm v. Wilson, 4 done, because there was evidence introduced to Mo. 41; Lee v. Ashbrook, 14 Mo. 378; Stewart v. show an acceptance of the house by the defend- Fulton, 31 Mo. 59. In Cutler v. Close, supra, the ant in its unfinished condition. The court, how- plaintiff had contracted to supply a warm-air apever, supports the general rule stated above. See paratus. In an action for the price—the defense also Adlard v. Booth, 7 Car. & P. 108. The being that the apparatus was not made in full rule in cases of this character may be stated thus: compliance with the terms of the contract-it was The obligations of all parties to the contract shall hell that, if the jury thought that the apparatus be avoided by the partial failure of considera- could be completed according to the contract for tion. But if the consideration and the agreement a specific sum, the plaintiff could recover for the

full cargo.

cases

up

value of the machine, less the sum required to es and equities of each particular case, to a vercomplete it. This case, however, does not lay dict for the value of the work and labor or matedown the principle that in all cases of partial fail- rials; not in an action upon the original contract, ure of consideration, the plaintiff can declare on but upon a new contract which the law raises by a quantum meruit, where the failure arises through implication in his favor. In the practice under his fault or neglect, Each case must stand upon what is generally known as the New York Code, its own merits; and the courts, exercising a wise this distinction is not so important as it is under legal discretion, will permit or refuse the right of the common-law pleading. Still it affords great action, according as the plaintiff, upon the state- assistance in an investigation of this subject, and ment of the case, shows himself entitled or not presents in a clear manner the reason why it is entitled to relief. A willful deviation from the left in the discretion of the court to permit or reterms of the contract will not be allowed to pass fuse the right of action, according to the facts of unchallenged, and the wrong-doer permitted to

each case. recover on a quantum valebat. Thus in Ellis v. II. As has been stated above, a broad distinction Hamlen, 3 Taunt. 53, it was held, that if a builder is to be taken between cases of impossibility of contracts for performance of a piece of work ac- consideration and impossibility of performance cording to certain plans and specifications, if he of the promise by the defendant. In the former deviates from them to any appreciable extent, he class of cases, any impossibility, arising from will not be permitted to recover upon a quantum whatever cause, except the act of the promisor, valebant for work and materials. In the exercise will be a good defense to the action. But in the of its discretion, however, a court would permit latter, the general rule is that impossibility of persuch recovery, if the impossibility did not arise formance will not excuse the breach of the confrom any willful act or careless neglect of his tract; and those cases on record, where impossiown. In Farnsworth v. Garrard, supra, it was bility of performance was held to be a valid and settled that the defendant would be entitled to a complete defense, are exceptions to the general verdict, if he showed that the work was wholly in- rule, established within well-defined limits, and adequate to the purpose for which it was intend- founded upon reason and equity. Thus if A ed. Where the part of the consideration which promises to do a certain thing, in consideration of has become impossible is a very essential part of B's doing something else, if it is impossible for B the contract, it is impossible to obtain a recovery to perform his part of the contract, he can not for a partial performance. Thus in Sheffield v. maintain an action against A for refusing to comBalmer, 1 Mo. App. 177, plaintiffs agreed to pub- ply with his obligations, from whatever cause the lish advertisements of the defendant in the Sunday impossibility may arise. But if A desired to sue edition of their paper. After a time they discon- B for his breach, and he was willing and able to tinued its publication on Sunday, and placed the perform his part of the contract, he could or could advertisements in the Saturday issue.

It was

not maintain the action, according as his case fell held that it was not a sufficient compliance with within or without the exceptions to be mentioned the terms of the contract to permit a recovery.

hereafter. In strictly legal language, there can be no re- The general rule governing this division of the covery upon a contract where the consideration subject is, that impossibility of performance, has failed, or has become impossible; and this is whether such impossibility arises through the fault the case, whether the impossibility relates to the of the promisor or not, will not constitute a valid whole or only part of the consideration. The en- defense to an action for a breach of the contract. tire consideration must be performed to entitle to a If the promisor makes the promise conditional recovery upon the contract. Where the consid- upon its continued possibility, ihen the risk is aseration is only partially impossible, the promisee sumed by the promisee, and he loses his right of has indeed a right of action, as the cases cited action, if the contingency arises. But if the show. This action, however, is not founded up- promisor makes the promise unconditionally, then on the original contract, but upon a new contract he assumes the risk, and as a general rule he can raised by the law under the doctrine of assumpsit,

not set up the impossibility of performance as a so that neither party will obtain any advan

defense to an action by the promisee. Anson on tage over the other to which he was not equitably Contracts, 314; 2 Parsons on Contracts, 672. entitled. The original contract, and all obliga

Most of the cases recorded in the books are tions supported by it, are destroyed, and a new those in which the impossibility has arisen subsecontract in assumpsit is raised to support the quent to the execution of the contract, and it is in action. The legitimate conclusion therefore is, these cases, that great difficulty is experienced. that in all actions upon contracts, the plaintiff. to Where the performance is in fact impossible, there entitle him to a recovery, must either show that can be no reason assigned why a party should not he has performed the entire consideration, or that be held to his promise, and be made liable for its he is able and willing to do so. Helm v. Wilson,

breach, if he made the promise when he was able 4 Mo. 41; Denny v. Kile, 16 Mo. 450; Eyerman v. to find out, if he did not know, that the thing was Mt. Sinai Cemetery Association, 61 Mo. 489. If impossible. If the promise has been obtained the consideration is impossible only in part, then

through fraud or collusion, as a matter of course he is entitled or not, according to the circumstanc- the contract would be void. But in the absence

of fraud, such a contract would be binding upon Harmony v. Bingham, 2 Kern, 99; Exposthe promisor, unless the impossibility was so glar- ito v. Bowden, 7 Ellis & B. 763. It may be reing and obvious that it would be absurd to sup- marked here, that this article is not intended to pose that the parties entered seriously into the cover such cases as belong more prope y to the contract with the intention of enforcing its ob- law of common carriers. These cases are governed ligations; as in the case suggested of a man prom- by a special law, peculiarly applicable to that ising to build a house in one day. 2. Parson's on branch of the law of contracts, and bear no analContracts, 673. It is hardly necessary to state ogy with cases in other classes of contracts. that such cases are governed by the same rules in 1. If the impossibility results from the act of the regard to illegality of contraet as will be men- promisee or his agents, the promisor is excused. tioned later on.

It would be clearly inequitable to permit the promWhere the impossibility arises after the contract isee to profit by his own acts, or to allow the promis inade, a somewhat different rule is applied; and isor to suffer from causes produced by the the promisor is excused from perforinance, if the promisee himself. Every man is responsible impossibility results, 1. from the act of the prom- for his own acts, and if they interfere with the isee; 2. from the act of God, or inevitable accident; performance by the promisor of a contract in 3. from the act of the law. But in all these cases which he is the promisee, he has only himself to it is necessary to prove an actual impossibility, in blame, and must bear the loss if any is incurred. order to establish a valid defense to the action. Thus in the case of Stewart v. Ketelkas, 36 N. Y. If the change in the circumstances only extends 388, the plaintiff agreed with the defendant to do so far as to make the performance more diflicult some masonry work, and the defendant undertook and expensive, the action will be sustained, and to have the necessary woodwork done. Through the promisor made to bear the loss if any.

the failure of the defendant's carpenters to finish Thus in the case of Williams v. Vanderbilt, it in the time agreed upon, the plaintiff was una28 N. Y. 217, where the defendant had undertaken ble to complete his contract within the stipulated to convey the plaintiff from New York to San time. In an action brought by the plaintiff to reFrancisco via the Isthmus of Panama, and the cover the money due on the contract for the masteamer, which was to receive him on the Pacific sonry work, it was held that the plaintiff was excoast of the isthmus was burned without any fault cused from liability for the delay in the compleor negligence on the part of the defendant, it was tion of the work, and was entitled to the full held that that constituted no defense to the action amount due on the contract. And even if the imbrought by the plaintiff for detention on the possibility arises only indirectly from the acts Isthmus, and the damages resulting therefrom of the promisee, its performance will be excused. through loss of time and sickness; because, Thus if one is engaged to excavate some land, although the loss of the ship rendered it more and to replace the earth in a certain way, and by difficult and

for the defendant to the direction f the promisee he deposited the carry out his contract, still, it was not out earth temporarily upon a neighbor's land, who of his power to procure another ship, and refused to allow him to remove it; it was decided hence he not to be excused from lia- that the promisee could not hold him liable for bility on the plea of impossibility of perform- not carrying out the contract. Tome v. Doelger. ance. In like manner the promisor is not excused 6 Rob. 251; see, also, Caines v. Smith, 15 M. & W. from performance, if the impossibility applied to 189; Tewksbury v. O'Connell, 21 Cal. 60; Johnhim individually, and the thing is not inherently ston v. Caulkins, 1 Johns. Cas. 116; Short v. impossible. Thus a contract to obtain the consent Stone, 8 Q. B. 358; Ford v. Tilley, 6 B. & C.326; of the landlord to an assignment of the lease will Bowdell v. Parsons, 10 East, 359; McCollough v. support an action, although it may be impossible Baker, 17 Mo. 401; Little v. Mercer, 9 Mo. 218; for the promisor to obtain such consent. Lloyd v.

Jarrel v. Farris, 6 Mo, 159; Squire v. Wright, 1 Crispe, 5 Taunt. 249. So, also, where one of sev

Mo. App. 172. eral partners promised to admit a stranger into the 2. Under the head of impossibility arising from co-partnership, it was a valid agreement, and the act of God or inevitable accident, there is would sustain an action, notwithstanding perform- | quite a variety of cases. The question has come ance became impossible through the refusal of the up for discussion in almost all the courts of this other partners to the introduction of the plaintiff. country and England, and a remarkable uniformMeNiel v. Reed, 2 M. & Scott, 89, S. C. 9 Bing. 68. ity is to be observed in the decisions. The EngIt may be stated further that the defendant's in- lish books are full of such cases, and the line is solvency and consequent inability to carry out his very clearly drawn between those cases of accipart of the contract, is no defense to an action for dents which will, and those which will not, excuse its breach. Lewis v. Atlas Mut. Life Ins. Co., 61 performance. Mo. 534. See further on this subject generally, In 2 Parsons on Contracts, 672, it is said: "If Bullock v. Dommit, 6 T. R. 650; Brecknock Co. the performance of a contract becomes impossible v. Pritchard, 6 T. R. 750; Atkinson v. Ritchie, 10 by the act of God, that is, by a cause which could East, 530; Porter v. The New England, 17 Mo. not possibly be attributed to the promisor, and the 390; Gilpins v. Consequia, Pet. C. C. 86; Paradine impossibility was not among the probable continY. Jane, ileyn, 26; Huling v. Craig, Addis. 342; gencies, which a prudent man should have fore

onerous

was

seen and provided for, it should seem tnat this would constitute a sufficient defense." In Harmony v. Bingham, 2 Kern, 98, Judge Edwards says: “It is a well-settled rule that, where the law creates a duty or charge, and the party is disabled from performing it without any default in himself, and he has no remedy over, then the law will excuse him; but where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity.” This rule is supported by a number of authorities. Paradine v. Jane, Allyn, 26; Shubrick v. Salmond, 3 Burr. 1637; Hadley v. Clark, 8 T. R. 259; Hand v. Baynes, 4 Whart. 204; Beebe v. Johnson, 19 Wend. 500; Helm v. Wilson, 4 Mo. 47; Angell on Common Carriers, $ 294; Chitty on Contracts, 737; Anson on Contracts, 314. There may be some cases which would militate against the acceptance of the rule as the true exposition of the law; but by far the majority of the decisions in the courts of this country and England uphold it. At first blush, one would suppose that such a rule would prevent the setting up of the defense of impossibility of performance in any case. But it is not so. Mr. Anson correctly says that the promisee bears the loss arising from inevitable accident, if the promisor made his promise conditional upon its contiuued possibitity. Now this condition may be either expressed or implied from the facts of each case. Wherever such a condition can be justly implied from the circumstances of a case, it constitutes just as binding a restriction upon the liabilities of the parties to the contract, as if it had been expressed. Now almost all, if not all, of the cases in which the defense of impossibility of performance has been accepted by the courts as a bar to the action, when carefully analyzed, will admit of the implication of such a condition as a limitation of the contract. Judge Blackburn, in Taylor F. Caldwell, 3 B. & S. 824, after citing and discussing the leading cases on this snbject, says: “In none of these cases is the promise in words other than positive, nor is there any express stipulation that the destruction of the thing or person shall excuse performance; but that excuse is by law implied, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel.".

Mr. Anson, in his recent work on Contracts, (p. 315), has divided the cases into three classes : 1, those in which the impossibility results from a change of the law in the country in which the contract is to be performed; 2, those in which *the continued existence of a specific thing or person is essential to the performance of the contract," and its destruction or the death of the person takes place; 3, those in which the contract has for its object the rendering of personal services by the promisor, and his sickness or death ensues. The first class will be treated later on under another subdivision. In the last two classes there are a number of cases, a few of which will be re

viewed. Thus in Taylor v. Caldwell, supra, A promised B to give him the use of a hall on certain specified days, without any express agreement as to how the burning of the ball would effect the contract. The hall was destroyed by fire before the completion of the contract, and it was decided that both parties should be excused from performance. In Williams v. Lloyd, 10 Jones, 179, s. C. nom. Williams v. Hyde, Palmer, 543, A promised B to return him at his request, a horse left in A's reeping. The horse having died, A was held excused from liability under the contract. So also has it been decided that a lessee of coal mines covenanting to work the mines for a stated period, wlll be excused from performing the covenant, if the mines should become exhausted before the expiration of the time stipulated. Walker v. Tuckor, 70 ml. 527. And where the master of a steamboat hired a barge and agreed to deliver it in good order, he was excused from liability, because the barge had been destroyed by ice without any neglect or default on his part. McEvers v. Steamboat, 22 Mo. 189. In Jones v. How. 9 C. B. 1, a father had covenanted with his daughter to leave her by will a portion or his property, and she died before him. Upon the death of the father, the property having been left to the widow and remaining children, it was held, in an action by the deceased wife's husband, upon the covenant against the executors of the father, that no action can lie, as it was impossible to perform the covenant, on account of the death of the daughter prior to the decease of her father.

Where the per-' sonal services of the promisor are the object of the contract, his death or sickness, preventing the execution of the promise, will be a complete defense to any action upon the contract. Defendant in one case agreed with the plaintiff that the former's wife would sing at the latter's concerts, and she was prevented from so doing by sickness. The court held that his wife's illness and consequent incapacity excused the defendant. Robinson v. Davison, L R. 6 Ex. 269. So also where the continued illness of an apprentice prevented him from fulfilling his obligations under the apprenticeship-deed. Boast V. Frith, L R. 4. C. P. 1. It

likewise decided that action lies a contract to pay for tuition, if the promisor during the whole time has been prevented by sickness from receiving the instruction. Stewart v. Loring, 5 Allen, 306. See Dewey v.Union School District, decided by the Supreme Court of Michigan in the present year. These cases are but a few of those bearing on this branch of the subject; but they are sufficient to show that the authorities cited above, are correct in holding, that, with a few limited exceptions, impossibility arising from inevitable accident will not excuse performance of duties created by a contract on this subject generally may be further consulted the cases cited below. White v. Mann, 26 Me. 361; Chapman v. Dalton, Plowden, 284; Holtham v. Ryland, 1

was

no

on

operation as long as the law continued in force. Baylies v. Fettyplace, 7 Mass. 325. See, also, Hadley v. Clark, 8 T. R. 259.

By way of summary, therefore, it may be stated that impossibility of performance by the defəndant will constitute a complete bar to an action on the contract, where the impossibility is caused by the acts of the promisee. Any act of his rendering the performance impossible will shield the defendant from liability. Where, however, the impossibility arises from the act of God, or inevitable accident, the defendant assumes the risk and bears the loss, unless the case falls within one of the exceptions enumerated above. Finally, any law which makes an act unlawful repeals a contract obligating its performauce, and forms a complete defense te any action upon it.

C. G. TIEDEMAN.

CO-TENANCY-RIGHT TO CONTRIBUTION

FOR REPAIRS-PRIORITY OF EQUITIES -EQUITABLE SU'BROGATION.

ALEXANDER V. ELLISON.

Court of Appeals of Kentucky, December, 1880.

Eq. Cas. Abr. 18; Bailey v. De Crespigny, L.R. 4 Q. B. 185; Nugent v. Smith, L R. 1 C. P. D. 19, 433; Knight v. Bean, 22 Me, 536; Appleby v. Myers, L R. 2 C. P. 651; Scully v. Kirkpatrick, 79 Pa. St. 324; Carpenter v. Stevens, 12 Wend. 589; Suydam v. Jenkins, 3 Sandf. 643; Baker V. Johnson, 2 Rob. 570; Clark v. Gilbert, 26 N. Y. 279: Lord v. Wheeler, 1 Gray, 282, Oakley v. Norton, 1 Kern, 25; Viblo v. Binnse, 44 Barb. 54.

3. When the law prohibits an act, a contract or agreement to perform it is impossible, because of its illegality. Courts will not sustain an action for breach of the contract. The same law which forbids the doing of a thing can not impose damages upon one who refuses to do it, although he he may have made a contract to that effect for a valuable consideration. It would be a flat contradiction and a conflict of policy if such were the case. This is the rule, where the law is violated at the time the contract is made. But the rule is the same, where the impossibility results from a subsequent change of the law, rendering that unlawful which was lawful at the execution of the contract. This rule aets in a double capacity. If one promises to do a thing which it is lawful for him to do, and a subsequent act of the legislature declares it unlawful, he is excused from performance. If he promises to refrain from doing a thing which he could lawtully promise not to do, and a subsequent statute makes it obligatory upon him to do it, he is likewise excused. These cases are put on the same footing with those of impossibility arising from the act of God or inevitable necessity. It is an impossibility resulting from the act of the law. Thus, where a lessor covenanted that he or his assigns would erect none but ornamental buildings upon certain lands owned by him, and Parliament, in the exercise of the right of eminent domain, authorized by special statute a railway company to takə possession of the land and erect a railway station thereon, it was held that he was excused from performance or his covenant, and that the act of Parliament rendering performance impossible impliedly repealed the covenant, and destroyed the rights of the parties thereunder. Bailey v. De Crespigny, L. R. 4, Q. B. 180. See, also, Presbyterian Church v. City of New York, 5 Cowen, 538; Brewster v. Kitchell, 1 Salk. 198; Beason y. Dean, 3 Mod. 38; Bennett v. Woolfolk, 15 Ga. 213; Brown v. Mayor, etc., 13 C. B. (N. S.) 828.

Where the illegality of performance exists at the execution of the contract, a subsequent statute making it lawful will not so influence the contract as to make that valid which was absolutely void in the beginning. A statute may, however, so act upen the contract as to suspend its operation for a time, and yet leave it so far subsisting that upon the repeal of the law it will be revived and its obligations enforced. Thus it was held that a law of the United States laying an embargo for a limited time, did not destroy a contract to deliver debentures, but only suspended its

1. Where a father about to grant certain property to his children as an advancement, told a person from whom they were attempting to borrow money that the grant was made to enable them to secure the loan, such communication was held to modify the constructive notice received when the grant was recorded, and to deprive the grantor of priority of any lien reserved therein over a mortgage for money loaned in pursuance of such communications.

2. A tenant in common who makes necessary repairs, has a lien for contribution upon the interest of his cotenants, especially if they refuse, or are under disability and so unable, to bear their share of the expenses.

3. By the doctrine of subrogation in equity, the whole property becomes liable for the debt of a cotenant incurred in making necessary repairs.

COFER, C. J., delivered the opinion of the court, as follows:

October 24, 1872, T. S. Ellison and his wife, in consideration of four thousand dollars, hereafter to be paid to the parties of the first part by the the parties of the second part, or to be accounted for by them in the final distribution of the estate of the parties of the first part," sold and conveyed to their son, E. S. Ellison, and their daughter, Ellen M. S. Hoover, then the wife of J. R. Hoover, property known and described as the Burksville Male and Female Academy," together with all the land and appurtenances thereunto belonging. The interest conveyed to Mrs. Hoover was declared to be for her separate use.

The deed was acknowledged and recorded on the 30th of the same month, and on the 1st day

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