plaintiff and one G. G., plaintiff promised to sell and deliver to G. G., a lace machine for £220, to be paid in instalments as follows: £40 on delivery, and the residue by weekly payments of £1, which should be received by the defendant as trustee of the plaintiff; and if the weekly payments should be stopped, the plaintiff would have the right to take back the machine. In consideration of the premises, and the weekly payments received by him, defendant promised to take the machine, and pay the balance due. In an action upon defendant's promise, it was held that the consideration was impossible, and the contract, a nudum pactum. The court says: "The declaration affects to show the legal operation of the agreement. Now that states that the agreement bound defendant to take the machine, not the plaintiff to deliver it. The declaration does not even show that it was in the plaintiff's power to deliver the machine, for it is not stated that he had ever got it back from the original vendee. There certainly is an allegation of willingness to let the defendant take the machine; but that does not appear to be in pursuance of any pre-existing agreement, nor does the whole import any obligation on the plaintiff to let the defendant take it. The declaration is therefore bad, no sufficient consideration for the defendant's promise being shown."

Great difficulty, like to that we have met with in cases of partial illegality of consideration, is experienced also in arriving at the correct conclusions in cases, where the impossibility refers only to a part of the consideration. When there is a total failure of the consideration, through impossibility of performance, the promise is clearly nudum pactum. But when cases of partial impossibility of performance come up for consideration, questions of antagonistic interests arise, the true solution of which is not so easy to find. Where the consideration is so compact, so much of an entirety that it cannot be separated into parts, so that the part which is capable of performance can stand alone, it must necessarily be the decision of the courts, that the whole contract is void. Thus, if a contractor agrees to repair a house, and, after considerable work had been done upon the house, it was burned, and the contractor prevented from completing the house, he cannot recover for the work already done. The repairs, as a whole, are so much of an entirety, that they cannot be divided up into parts. Lord v. Wheeler, 1 Gray, 282. In this case the plaintiff was allowed to recover for work done, because there was evidence introduced to show an acceptance of the house by the defendant in its unfinished condition. The court, however, supports the general rule stated above. See also Adlard v. Booth, 7 Car. & P. 108. The rule in cases of this character may be stated thus: The obligations of all parties to the contract shall be avoided by the partial failure of consideration. But if the consideration and the agreement

founded upon it, be in its nature divisible so that they are severable into parts, each part constituting a valid contract with entire consideration, and a part of the consideration failed or became impossible, the appropriate part of the contract could be apportioned to it, and what remained of the contract, supported by the valid consideration, could be enforced and a recovery had. Thus in Ritchie v. Atkinson, 10 East, 295, the master and freighter of a vessel agreed in writing that the former should take the vessel with all convenient speed to St. Petersburg, and there load the vessel with a complete cargo of hemp and iron; and in consideration of the same the freighter promised to pay freight at stipulated rates per ton. The master failed to bring a complete cargo, through alleged impossibility to obtain it. It was decided that the master could recover freight for whatever cargo he brought at the stipulated rates. and that a delivery of a complete cargo was not a condition precedent to such recovery. The freighter had, of course, his right of action against the master for failure to deliver a complete cargo. In this case the contract could be divided up into as many smaller contracts as there were tons of iron and hemp, and the proper consideration apportioned to each. This being possible, it would have been clearly inequitable to have denied the right to sue for the freight earned by the delivery of a short cargo, while the freighter enjoyed the benefit of his carriage, and also had his action of damages for failure to take in a full cargo.

The action will be sustained upon similar grounds in other cases, where the part of the consideration, which has become impossible, does not go to the essence of the contract, and the consideration as a whole is substantially performed. Thus, where a party agreed to build a number of cottages by the 10th of October, and they were not completed until the 15th, the defendant was held bound to pay for the value of the work and materials. Lucas v. Godwin, 3 Bing. (N. C.) 746. In all such cases, however, the defendant has the right to set off the damages incurred by the partial failure of consideration; so that the correct rule is, that the plaintiff is not entitled to the pro rata value of the work, estimated by the terms of the contract, but to the agreed price, less such a sum, as would be sufficient to complete the contract. Thornton v. Place, 1 Moo. & Rob. 218; Cutler v. Close, 5 Car. and P. 337; Chapel v. Hicke, 2 Cr. & M. 214; Allen v. Cameron, 3 Tyr. 907; Mondel v. Steel, 8 Mee. & W. 870; Farnsworth v. Garrard, 1 Camp. 38; Helm v. Wilson, 4 Mo. 41; Lee v. Ashbrook, 14 Mo. 378; Stewart v. Fulton, 31 Mo. 59. In Cutler v. Close, supra, the plaintiff had contracted to supply a warm-air apparatus. In an action for the price-the defense being that the apparatus was not made in full compliance with the terms of the contract-it was hel! that, if the jury thought that the apparatus could be completed according to the contract for a specific sum, the plaintiff could recover for the

value of the machine, less the sum required to complete it. This case, however, does not lay down the principle that in all cases of partial failure of consideration, the plaintiff can declare on a quantum meruit, where the failure arises through his fault or neglect, Each case must stand upon its own merits; and the courts, exercising a wise legal discretion, will permit or refuse the right of action, according as the plaintiff, upon the statement of the case, shows himself entitled or not entitled to relief. A willful deviation from the terms of the contract will not be allowed to pass unchallenged, and the wrong-doer permitted to recover on a quantum valebat. Thus in Ellis v. Hamlen, 3 Taunt. 53, it was held, that if a builder contracts for performance of a piece of work according to certain plans and specifications, if he deviates from them to any appreciable extent, he will not be permitted to recover upon a quantum valebant for work and materials. In the exercise of its discretion, however, a court would permit such recovery, if the impossibility did not arise from any willful act or careless neglect of his own. In Farnsworth v. Garrard, supra, it was settled that the defendant would be entitled to a verdict, if he showed that the work was wholly inadequate to the purpose for which it was intended. Where the part of the consideration which has become impossible is a very essential part of the contract, it is impossible to obtain a recovery for a partial performance. Thus in Sheffield v. Balmer, 1 Mo. App. 177, plaintiffs agreed to publish advertisements of the defendant in the Sunday edition of their paper. After a time they discontinued its publication on Sunday, and placed the advertisements in the Saturday issue. It was held that it was not a sufficient compliance with the terms of the contract to permit a recovery.

In strictly legal language, there can be no recovery upon a contract where the consideration has failed, or has become impossible; and this is the case, whether the impossibility relates to the whole or only part of the consideration. The entire consideration must be performed to entitle to a recovery upon the contract. Where the consideration is only partially impossible, the promisee has indeed a right of action, as the cases cited show. This action, however, is not founded upon the original contract, but upon a new contract raised by the law under the doctrine of assumpsit, so that neither party will obtain any advantage over the other to which he was not equitably entitled. The original contract, and all obligations supported by it, are destroyed, and a new contract in assumpsit is raised to support the action. The legitimate conclusion therefore is, that in all actions upon contracts, the plaintiff. to entitle him to a recovery, must either show that he has performed the entire consideration, or that he is able and willing to do so. Helm v. Wilson, 4 Mo. 41; Denny v. Kile, 16 Mo. 450; Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. 489. If the consideration is impossible only in part, then he is entitled or not, according to the circumstanc

es and equities of each particular case, to a verdict for the value of the work and labor or materials; not in an action upon the original contract, but upon a new contract which the law raises by implication in his favor. In the practice under what is generally known as the New York Code, this distinction is not so important as it is under the common-law pleading. Still it affords great assistance in an investigation of this subject, and presents in a clear manner the reason why it is left in the discretion of the court to permit or refuse the right of action, according to the facts of each case.

II. As has been stated above, a broad distinction is to be taken between cases of impossibility of consideration and impossibility of performance of the promise by the defendant. In the former class of cases, any impossibility, arising from whatever cause, except the act of the promisor, will be a good defense to the action. But in the latter, the general rule is that impossibility of performance will not excuse the breach of the contract; and those cases on record, where impossibility of performance was held to be a valid and complete defense, are exceptions to the general rule, established within well-defined limits, and founded upon reason and equity. Thus if A promises to do a certain thing, in consideration of B's doing something else, if it is impossible for B to perform his part of the contract, he can not maintain an action against A for refusing to comply with his obligations, from whatever cause the impossibility may arise. But if A desired to sue B for his breach, and he was willing and able to perform his part of the contract, he could or could not maintain the action, according as his case fell within or without the exceptions to be mentioned hereafter.

The general rule governing this division of the subject is, that impossibility of performance, whether such impossibility arises through the fault of the promisor or not, will not constitute a valid defense to an action for a breach of the contract. If the promisor makes the promise conditional upon its continued possibility, then the risk is assumed by the promisee, and he loses his right of action, if the contingency arises. But if the promisor makes the promise unconditionally, then he assumes the risk, and as a general rule he can not set up the impossibility of performance as a defense to an action by the promisee. Anson on Contracts, 314; 2 Parsons on Contracts, 672.

Most of the cases recorded in the books are those in which the impossibility has arisen subsequent to the execution of the contract, and it is in these cases, that great difficulty is experienced. Where the performance is in fact impossible, there can be no reason assigned why a party should not be held to his promise, and be made liable for its breach, if he made the promise when he was able to find out, if he did not know, that the thing was impossible. If the promise has been obtained through fraud or collusion, as a matter of course the contract would be void. But in the absence

of fraud, such a contract would be binding upon the promisor, unless the impossibility was so glaring and obvious that it would be absurd to suppose that the parties entered seriously into the contract with the intention of enforcing its obligations; as in the case suggested of a man promising to build a house in one day. 2 Parson's on Contracts, 673. It is hardly necessary to state that such cases are governed by the same rules in regard to illegality of contract as will be mentioned later on.

Where the impossibility arises after the contract is made, a somewhat different rule is applied; and the promisor is excused from performance, if the impossibility results, 1. from the act of the promisee; 2. from the act of God, or inevitable accident; 3. from the act of the law. But in all these cases it is necessary to prove an actual impossibility, in order to establish a valid defense to the action. If the change in the circumstances only extends so far as to make the performance more difficult and expensive, the action will be sustained, and the promisor made to bear the loss if any.

Thus in the case of Williams v. Vanderbilt, 28 N. Y. 217, where the defendant had undertaken to convey the plaintiff from New York to San Francisco via the Isthmus of Panama, and the steamer, which was to receive him on the Pacific coast of the isthmus was burned without any fault or negligence on the part of the defendant, it was held that that constituted no defense to the action brought by the plaintiff for detention on the Isthmus, and the damages resulting therefrom through loss of time and sickness; because, although the loss of the ship rendered it more difficult and onerous for the defendant to carry out his contract, still, it was not out of his power to procure another ship, and hence he was not to be excused from liability on the plea of impossibility of performance. In like manner the promisor is not excused from performance, if the impossibility applied to him individually, and the thing is not inherently impossible. Thus a contract to obtain the consent of the landlord to an assignment of the lease will support an action, although it may be impossible for the promisor to obtain such consent. Lloyd v. Crispe, 5 Taunt. 249. So, also, where one of several partners promised to admit a stranger into the co-partnership, it was a valid agreement, and would sustain an action, notwithstanding performance became impossible through the refusal of the other partners to the introduction of the plaintiff. McNiel v. Reed, 2 M. & Scott, 89, s. c. 9 Bing. 68. It may be stated further that the defendant's insolvency and consequent inability to carry out his part of the contract, is no defense to an action for its breach. Lewis v. Atlas Mut. Life Ins. Co., 61 Mo. 534. See further on this subject generally, Bullock v. Dommit, 6 T. R. 650; Brecknock Co. v. Pritchard, 6 T. R. 750; Atkinson v. Ritchie, 10 East, 530; Porter v. The New England, 17 Mo. 390; Gilpins v. Consequa, Pet. C. C. 86; Paradine v. Jane, leyn, 26; Huling v. Craig, Addis. 342;

Harmony v. Bingham, 2 Kern, 99; Exp ito v. Bowden, 7 Ellis & B. 763. It may be marked here, that this article is not intended cover such cases as belong more prope y to law of common carriers. These cases are govern by a special law, peculiarly applicable to th branch of the law of contracts, and bear no an ogy with cases in other classes of contracts.

1. If the impossibility results from the act of promisee or his agents, the promisor is excus It would be clearly inequitable to permit the pro isee to profit by his own acts, or to allow the pro isor to suffer from causes produced by t promisee himself. Every man is responsil for his own acts, and if they interfere with t performance by the promisor of a contract which he is the promisee, he has only himself blame, and must bear the loss if any is incurre Thus in the case of Stewart v. Ketelkas, 36 N. 388, the plaintiff agreed with the defendant to some masonry work, and the defendant underto to have the necessary woodwork done. Throug the failure of the defendant's carpenters to fini it in the time agreed upon, the plaintiff was un ble to complete his contract within the stipulate time. In an action brought by the plaintiff to r cover the money due on the contract for the ma sonry work, it was held that the plaintiff was ex cused from liability for the delay in the comple tion of the work, and was entitled to the fu amount due on the contract. And even if the in possibility arises only indirectly from the ac of the promisee, its performance will be excused Thus if one is engaged to excavate some land and to replace the earth in a certain way, and b the direction of the promisee he deposited th earth temporarily upon a neighbor's land, wh refused to allow him to remove it; it was decide that the promisee could not hold him liable fo not carrying out the contract. Tome v. Doelge 6 Rob. 251; see, also, Caines v. Smith, 15 M. & W 189: Tewksbury v. O'Connell, 21 Cal. 60; John ston v. Caulkins, 1 Johns. Cas. 116; Short v Stone, 8 Q. B. 358; Ford v. Tilley, 6 B. & C. 326 Bowdell v. Parsons, 10 East, 359; McCollough v Baker, 47 Mo. 401; Little v. Mercer, 9 Mo. 218 Jarrel v. Farris, 6 Mo. 159; Squire v. Wright, Mo. App. 172.

2. Under the head of impossibility arising from the act of God or inevitable accident, there i quite a variety of cases. The question has com up for discussion in almost all the courts of thi country and England, and a remarkable uniform ity is to be observed in the decisions. The Eng lish books are full of such cases, and the line i very clearly drawn between those cases of acci dents which will, and those which will not, excus performance.

In 2 Parsons on Contracts, 672, it is said: "I the performance of a contract becomes impossible by the act of God, that is, by a cause which could not possibly be attributed to the promisor, and the impossibility was not among the probable contin gencies, which a prudent man should have fore

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 v. 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 hall 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 keeping. 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, will be excused from performing the covenant, if the mines should become exhausted before the expiration of the time stipulated. Walker v. Tucker, 70 Ill. 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 personal 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 no action lies on 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

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; Niblo 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 acts 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 coven

anted 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 takǝ 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 v. 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

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

By way of summary, therefore, it may be state that impossibility of performance by the defond ant will constitute a complete bar to an action o the contract, where the impossibility is caused b the acts of the promisee. Any act of his render ing the performance impossible will shield th defendant from liability. Where, however, th impossibility arises from the act of God, or inev itable accident, the defendant assumes the ris and bears the loss, unless the case falls within on 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 SUBROGATION.

ALEXANDER v. ELLISON.

Court of Appeals of Kentucky, December, 1880.

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