recover full damages based on full performance, that is, he may not increase his damages by a useless performance.194 The effect of the renunciation, however, if not withdrawn, is to excuse him from tendering performance of the conditions incumbent upon him.15 The rule applies equally to a renunciation after partial performance. Thus, if after a partial delivery the buyer gives notice to the seller that he will accept no further deliveries, the seller may sue for breach of contract without averring performance, and upon the simple averment that he was ready and willing to perform, and had been prevented from so doing by the buyer.1

196

A fortiori the contract is discharged when one of the parties makes it impossible to perform his promise. Thus where the seller agrees to sell a specified ox, and before the time for delivery consumes it,197 or contracts to sell specific goods, and before the day for delivery sells them to another,198 the buyer may sue for the breach without tendering the price.

Insolvency of Buyer.

The mere insolvency of the buyer does not excuse the seller from performance, since the assignee or trustee of the insolvent may elect to complete the contract; 190 but, in case of the in

194 Post, p. 351.

195 Bunge v. Koop, 48 N. Y. 225, 8 Am. Rep. 546; Crist v. Armour, 34 Barb. (N. Y.) 378; McPherson v. Walker, 40 Ill. 372; Daniels v. Newton, 114 Mass. 530, 533, 19 Am. Rep. 384; Ault v. Dustin, 100 Tenn. 366, 45 S. W. 981. See, also, cases cited in note 198, post.

196 Cort v. Railway Co., 17 Q. B. 127; Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Clement & Hawkes Mfg. Co. v. Meserole, 107 Mass. 362; Parker v. Russell, 133 Mass. 74; Haines v. Tucker, 50 N. H. 307, 311; Canda v. Wick, 100 N. Y. 127, 2 N. E. 381; Textor v. Hutchings, 62 Md. 150; Walsh v. Myers, 92 Wis. 397, 66 N. W. 250; Farwell v. Solomon, 170 Mass. 457, 49 N. E. 738.

197 Benj. Sales, § 567.

198 Bowdell v. Parsons, 10 East, 359; Hawley v. Keeler, 53 N. Y. 114; Parker v. Pettit, 43 N. J. Law, 512; Smith v. Jordan, 13 Minn. 264 (Gil. 246), 97 Am. Dec. 234; Newcomb v. Brackett, 16 Mass. 161; Ft. Payne Coal & Iron Co. v. Webster, 163 Mass. 134, 39 N. E. 786. Contra: Webb v. Stephenson, 11 Wash. 342, 39 Pac. 952; Garberino v. Roberts, 109 Cal. 125, 41 Pac. 857.

While the seller may reacquire the goods before the time for performance, the chance is remote. See 14 Harv. Law Rev. 427.

199 In re Bessemer Steel Co., 4 Ch. Div. 108; Pardee v. Kanaday,

solvency of the buyer, the seller may require payment of cash on delivery, although he may have agreed to give credit,200 and, if the assignee or trustee does not elect to complete the contract, the seller may treat the insolvency as a renunciation of the contract.201

Impossibility of Performance.

As we have seen, impossibility of performance, which arises from the nonexistence of the thing sold at the time of the formation of the contract, avoids the contract.202 The question now under consideration is how far impossibility arising subsequently to the formation of the contract discharges it, and therefore constitutes an excuse for nonperformance.

The general rule is that no impossibility arising subsequently to the formation of the contract is an excuse for nonperformance. 203 The promisor who promises unconditionally takes the risk of being unable to perform, even though his inability should be caused by inevitable accident or other circumstances beyond his control.204 Thus, where the seller has contracted to deliver goods, he is liable for failure to deliver, notwithstanding that delivery was rendered impossible by frosts or freshets or other causes obstructing navigation or transporta

100 N. Y. 121, 2 N. E. 885; Rappleye v. Seeder Co., 79 Iowa, 220, 228, 44 N. W. 363, 7 L. R. A. 139; Florence Min. Co. v. Brown, 124 U. S. 385, 8 Sup. Ct. 531, 31 L. Ed. 424. See, also, Vandegrift v. Engineering Co., 161 N. Y. 435, 55 N. E. 941, 48 L. R. A. 685.

200 Ex parte Chalmers, 8 Ch. 289; Pardee v. Kanaday, supra; Rappleye v. Seeder Co., supra; Florence Min. Co. v. Brown, supra; Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. 1124, 34 Am. St. Rep. 531; Lennox v. Murphy, 171 Mass. 370, 50 N. E. 644.

201 Ex parte Chalmers, supra; Morgan v. Bain, 10 C. P. 15. Where the buyer makes an assignment for benefit of creditors, the seller may refuse to complete the contract. Rappleye v. Seeder Co.,

supra.

202 Ante, p. 45.

203 Clark, Cont. (2d Ed.) 472.

204 Ashmore v. Cox & Co. (1899) 1 Q. B. 436 (shipment between dates fixed prevented by outbreak of war); Summers v. Hibbard, Spencer Bartlett & Co., 153 Ill. 102, 38 N. E. 899, 46 Am. St. Rep. 872; Middlesex Water Co. v. Knappmann Whiting Co., 64 N. J. Law, 240, 45 Atl. 693, 49 L. R. A. 572, 81 Am. St. Rep. 467; Adams v. Ames, 19 Wash. 425, 53 Pac. 546.

tion,205 or by pestilence, 20 or by the destruction of the seller's factory by fire,207 or by droughts stopping his mill.20

Same-Destruction of Thing Sold.

An exception to the general rule arises when the impossibility is caused by the destruction of the subject-matter of the contract before breach, and without default of the contractor. The contract is said to be subject to an implied condition to this effect. Where the continued existence of a specific thing is essential to the performance of a contract, the destruction from no fault of either party operates as a discharge. Therefore, where the contract is for the sale of specific goods which perish without the fault of the seller or the buyer before the day appointed for delivery, the seller is excused from the obligation to deliver, and the buyer from obligation to pay.210 If, however, the property has already passed, although the goods are still in the possession of the seller, the buyer must pay the price.211 So where goods are to be manufactured in a particular factory, which is destroyed,212 or grown in a particular field, and the crop fails,218 the seller and the buyer are excused.

205 Kearon v. Pearson, 7 Hurl. & N. 386, 31 Law J. Exch. 1; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Bacon v. Cobb, 45 Ill. 47 (seizure of railroad by government to transport troops). 206 Barker v. Hodgson, 3 Maule & S. 267.

207 Jones v. U. S., 96 U. S. 24, 24 L. Ed. 644; Booth v. Mill Co., 60 N. Y. 487.

208 Eddy v. Clement, 38 Vt. 486.

209 Clark, Cont. (2d Ed.) 475.

210 Rugg v. Minett, 11 East, 210; Howell v. Coupland, L. R. 9 Q. B. 462, 1 Q. B. Div. 258; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Thompson v. Gould, 20 Pick. (Mass.) 134, 139; Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65; Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325. See Sale of Goods Act, § 7; Sales Act, 8 8. The latter act adds a subsection to cover the case of deterioration or partial destruction, which Prof. Williston says is believed to express the existing law. See McMillan v. Fox, 90 Wis. 173, 62 N. W. 1052.

211 Taylor v. Caldwell, 3 Best & S. 826, 32 Law J. Q. B. 164, per Blackburn, J. Ante, p. 141. So if by agreement the risk has passed to the buyer. Ante, p. 142.

212 See Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215. Where defendant contracted to sell a cargo of cotton seed to

213 Howell v. Coupland, 1 Q. B. Div. 258. Cf. Anderson v. May, 50 Minn. 280, 52 N. W. 530, 17 L. R. A. 555, 36 Am. St. Rep. 642.

The distinction between cases in which the destruction of the thing sold is held to be an excuse, and those in which the performance is prevented by other causes beyond the promisor's control, is also sometimes placed upon the ground that in the former cases the performance is physically impossible, "quod natura fieri non concedit," and that in the latter cases performance is in its nature possible, notwithstanding that the promisor is unable to perform it.214

Same-Legal Impossibility.

A second exception arises where the impossibility resulting is created by the law. If, after the contract is entered into, a statute is passed rendering it illegal, the promisor is no longer bound.215

be shipped at A. during January per ship O., and the ship stranded in December, so that shipment in January became impossible, the seller was not liable for failure to ship. Nickoll v. Ashton & Co. (1901) 2 K. B. 126.

214 Jones v. U. S., 96 U. S. 24, 24 L. Ed. 644, per Clifford, J.; Benj. Sales, § 570.

215 Baily v. De Crespigny, L. R. 4 Q. B. 180; Brick Presbyterian Church v. City of New York, 5 Cow. (N. Y.) 538; Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430; Mississippi & T. R. Co. v. Green, 9 Heisk. (Tenn.) 588; Clark, Cont. (2d Ed.) 474. As to impossibility arising from the action of the courts, see Malcomson v. Mills (C. C.) 88 Fed. 680; Clark, Cont. (2d Ed.) 475.

Where defendants sold certain coffee to plaintiff, to be delivered at New York at a certain time, the refusal of the board of health to allow the coffee to land rendered the contract impossible of performance according to its terms, so as to excuse defendants from such performance. J. H. Labaree v. Crossman, 100 App. Div. 499, 92 N. Y. Supp. 565, affirmed 184 N. Y. 586, 77 N. E. 1189.

100. Notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller, as such, may have certain rights against the goods, viz.: (a) A lien on the goods or right to retain them for the price while he is in possession of them.

(b) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them.

(c) A right of resale.

(d) A right, in some jurisdictions, to rescind the sale.1

When the property in goods passes by a sale, it does not follow necessarily that the right of possession also passes. So long as the goods remain in the seller's possession he has, unless he has waived it, a lien for the payment of the price. Even if they have passed out of his actual possession into the hands of a carrier for delivery to the buyer, he has the right, in case of the latter's insolvency, to intercept the goods, and to prevent them from coming into his actual possession. When he has exercised his right of lien or of stoppage in transitu, he has, under certain circumstances, the right to resell the goods; and in many jurisdictions he has the right, under certain circumstances, to rescind the sale and resume the property in the goods.

1 See Sales Act, § 53. 2 Post, p. 822

Post, p. 339.

◄ Post, p. 342.