126. A and B agree to marry each other upon the death of A's father. A, during his father's lifetime, renounces his contract. B may sue A at once for damages for breach of his contract. Her inchoate right to the performance of the contract is violated. Hence she does not have to wait until the death of A's father before bringing her action. Moreover, the fact that A's promise is contingent upon A and B outliving A's father does not effect her right to recover damages for the breach.

127. A enters into a contract with B for the purchase of B's farm. Payment is to be made in several installments, and upon payment of the last one B is to deliver to A a deed of the farm. A refuses to pay the second installment when due and B sues him for it. B is entitled to recover. A's promise to pay each installment, other than the last one, is independent of the covenant to convey. Hence, B may sue him for each installment, except the last one, without offering to convey the farm.

128. A, the master of a ship, promises to pay B, a sailor, 30 guineas (which is more than ordinary wages) "provided he proceeds, continues, and does his duty as second mate in the said ship from hence to the port of Liverpool." B, after serving as second mate for seven weeks, dies three weeks before the ship reaches Liverpool. B's administrator cannot recover for the services performed, either on the express contract or on a quantum meruit. "It may fairly be considered that the parties themselves understood that, if the whole duty were performed, the mate was to receive the whole sum, and that he was not to receive anything unless he did continue on board during the whole voyage." 99 1

129. A entered into a contract with B for the sale of "5,000 tons of iron rails, for shipment from European port or ports, at the rate of 1,000 tons per month, beginning February, 1880, but whole contract to be shipped before August, 1880, at $45 per ton, ex ship Philadelphia, settlement cash on presentation of bills," etc. A shipped only 400 tons in February and 885 1 Cutter v. Powell, 6 Term R. 320.

tons in March. B, after paying for the February shipment, in ignorance of the defective shipments in that month and in March, rescinded the contract. B is not liable to A for breach of the contract. He had the right to rescind the whole contract owing to the defective delivery in respect to the first installment. The time of delivery was of the essence of the contract. Moreover, the contract was indivisible and the provision as to installments merely subsidiary.1

130. A, who sells his horse to B, innocently warrants it sound. B subsequently learns that the horse has the heaves and seeks to compel A to take it back and refund the purchase price. By the weight of authority A's warranty is a subsidiary promise and not a condition, and B's only remedy is an action for damages. In some states, however, including Massachusetts, B is entitled to rescind the contract.

131. A makes a contract with B to build for him a residence. One of the provisions is that the building shall be constructed to the satisfaction of the architect, and paid for only on the production of his certificate that the materials used and work done are satisfactory. B's obligation to pay is conditional upon the production of the certificate. In the absence of fraud or mistake, the decision of the architect is conclusive upon the parties.

132. A makes a contract with B for the purchase of a definite quantity of goods of a certain kind, to be delivered at a certain time. A is not bound to accept goods, of a different kind, or in less quantity, or at a different time. It is to be observed, however, that if A accept goods of a different kind he is estopped from rescinding for the breach, but he may sue for damages.

133. A, who has a lease of B's store for ten years, enters into a contract with C, agreeing to assign the lease to him within

1 Norrington v. Wright, 115 U. S. 188. Upon this point, however, both the English and the American decisions are conflicting. See Hoare v. Rennie, 5 Hurl. & N. 19; Simpson v. Crippin, L. R. 8 Q. B. Div. 14; Gerli v. Manuf. Co., 57 N. J. Law, 432, 31 Atl. R. 401, 51 Am. St. Rep. 611, 30 L. R. A. 61.

three years from date. A month later A assigns the lease to D. C's right of action accrues at the time A assigns the lease to D.

134. A, a market gardener, gives B an order for a certain quantity of an early variety of turnip seed. B fills the order, representing that the seed delivered is the early variety ordered. The turnips grown from the seed are of a late variety and not fit for table use. A has a right of action against B for the difference between the market value of the turnips grown and that of those he might have grown had his order been properly filled.

135. A, a ship owner, agrees to take his ship to a certain port and there load a full cargo and deliver it at another port upon being paid a certain freight. He takes aboard an incomplete cargo and delivers it at the place agreed. Payment of freight is refused on the ground that the taking of a full cargo is a condition precedent. A can recover freight for transporting the incomplete cargo. The contract is divisible. The other party, however, is entitled to damages for A's breach in failing to transport and deliver a full cargo. Whether the completeness of the cargo is a condition precedent to any payment due or not depends, as is said by Lord Ellenborough, "not on any formal arrangement of the words, but on the reason and sense of the thing as it is to be collected from the whole contract: whether of two things reciprocally stipulated to be done, the performance of the one does in sense and reason depend upon the performance of the other." 1 Ritchie v. Atkinson, 10 East 295.

991

CHAPTER IX

DISCHARGE OF CONTRACTS (Continued)

142. Discharge by impossibility of performance.— The effect upon a contract of impossibility of performance depends upon the circumstances of the particular case. It may prevent the formation of the contract, discharge it, or have no effect at all.

There are two stages at which the impossibility may occur. It may exist at the time of the attempted formation of the contract, or arise subsequently. In either case it may be a physical or a legal impossibility.

When it exists at the time of the attempted formation of the contract its effect is to avoid the contract. It does not, however, discharge it. It prevents its formation because of the fact that there is no real consideration for the counter promise or act. For example, where the subject-matter of the contract at the time it is entered into has ceased to exist, the impossibility of performance avoids the contract.

When the impossibility of performance occurs subsequently to the making of the contract it may or may not discharge it. As a rule, it does not, even in those cases where there is no fault on the part of the promisor. In this connection the Supreme Court of the United States

Where the contract is to do a thing which is possible in itself, the performance is not excused by the occurrence of an 1 Jones v. United States, 96 U. S. 24.

inevitable accident or other contingency, although it was within his control.

And as said in an old English case:

1

When the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.

Thus, where a contractor enters into an agreement to construct a house, and the building is destroyed without fault on his part before its completion and acceptance by the owner, the contractor is not entitled to recover for what he has done, nor is he discharged from his obligation to complete the building. On the other hand, where the contract is to make repairs on a building or chattel, which is destroyed without fault on the part of the contractor before the repairs are completed, it is generally held that he is discharged from his obligation, and furthermore, that he may recover for the work he has done. Some courts, however, do not favor this rule.*

3

143. Exceptions to the rule.-The chief exceptions to the rule that impossibility of performance occurring subsequently to the making of the contract does not discharge it are the following:

1. Destruction of the subject-matter. 2. Legal impossibility.

3. Incapacity for personal services.

1 Paradine v. Jane, Aleyn 26.

2 Dermott v. Jones, 2 Wall. (U. S.) 1.

3 Butterfield v. Byron, 153 Mass. 517, 27 N. E. R. 667, 25 Am. St. Rep. 654, 12 L. R. A. 571.

4 Siegel, Cooper & Co. v. Eaton & Prince Co., 165 Ill. 550, 46 N. E. R. 449; Paradine v. Jane, supra.