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4. Performance rendered impossible by act of the promisee.

144. Destruction of the subject-matter.-When the continued existence of the subject-matter of a contract is essential to its performance, and there is no express or implied warranty that the subject-matter shall continue to exist, its destruction before the time of performance discharges the contract.

EXAMPLE

136. A, the owner of a music hall, agrees with B to let him have the use of it on certain dates for the purpose of giving public entertainments. Before the dates arrive, the hall is accidentally destroyed by fire. A is freed from his obliga

tion.

This is the rule followed in a leading English case:

EXAMPLES

1

137. A agrees to sell and deliver to B certain goods. Before the date of delivery, the goods perish without A's fault. A is freed from delivering them and B from paying for them.2

138. A agrees to manufacture for B certain goods in a particular factory. That night the factory is accidentally destroyed by fire. The contract is discharged.3

139. A sells B a crop of rye to be grown on a particular piece of land. Before the crop matures it is destroyed by a hail storm. The destruction of the subject-matter discharges the contract.

1 Taylor v. Caldwell, 3 Best & S. 826.

The parties must be presumed to have contemplated the continuing existence as the foundation of what was to be done, hence, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be continued as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor.

2 Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65.
3 Stewart v. Stone, 127 N. Y. 500, 28 N. E. R. 595.

145. Legal impossibility.-Where the performance of a contract is rendered legally impossible by the act of a governmental agency acting within the scope of its authority, the promisor is exonerated from the performance of his obligation and the contract is discharged. Thus, where an act of the legislature, or an order of the court or of the executive, renders performance legally impossible the promisor is not liable for breach of the contract.

140. A, who leases to B a piece of land, covenants for himself and his assigns that he will not erect upon the adjoining land, which he retains, any but ornamental buildings. By legislative authority, a railway company condemns the adjoining land and erects a station thereon during the term of the lease. A is freed from the performance of his covenant.

This doctrine was held by the court in an English

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The legislature, by compelling him to part with his land to a railway company, whom he could not bind by any stipulation, as he could an assignee chosen by himself, has created a new kind of assign, such as was not in the contemplation of the parties when the contract was entered into. To hold the defendant responsible for the acts of such an assignee is to make an entirely new contract for the parties.

141. A, who agrees to work for B for 6 months, covenants that if he leave B's employ without giving him two weeks' notice he will forfeit the wages due him. After A has worked a month he is convicted of a crime and imprisoned. A is exonerated from his promise to give two weeks' notice and B must pay him the wages due. It is to be observed, however, 1 Baily v. De Crespigny, L. R. 4 Q. B. Div. 180.

2 Hughes v. Wamsutta Mills, 11 Allen (Mass.) 201. Some courts, however, seem to doubt this view. See Leopold v. Salkey, 89 Ill. 412, 31 Am. Rep. 93.

that when the impossibility created by the law is only temporary the liability to perform is merely suspended for the time being.1

146. Incapacity for personal services.-When the contract is for personal services, which are of such a nature that they cannot be performed as well by a representative, the death or the incapacitation by illness of the promisor discharges the contract, in the absence of an express provision to the contrary. An English case so holds: 2

This is a contract to perform a service which no deputy could perform, and which, in case of death, could not be performed by the executors of the deceased; and I am of opinion that by virtue of the terms of the original bargain incapacity of body or mind in the performer, without default on his or her part, is an excuse for nonperformance. Of course the parties might expressly contract that incapacity should not excuse, and thus preclude the condition of health from being annexed to their agreement. Here they have not done so, and, as they have been silent on that point, the contract must, in my judgment be taken to have been conditional and not absolute.

147. Contractor's liability under conditions of danger. When a person has contracted to labor for a specified time in a certain place, and owing to the prevalence of a contagious and fatal disease in the vicinity of that place the danger is such as to render it unsafe and unreasonable to remain there, he is justified in refusing to go on with the work, and in doing so he is not liable in damages for breach of his contract.

On the other hand, it has been held, where the con

1 Baylies v. Fettyplace, 7 Mass. 325; Hadley v. Clarke, 8 Term R. 259. 2 Robinson v. Davidson, L. R. 6 Exch. 269.

tract is positive, that if, owing to the danger involved under the conditions stated, the employer stops the work until after the danger has passed he is liable to the employé for his wages during the period of suspension.

EXAMPLES

142. A, a musician, enters into a contract to perform at a concert. Owing to a dangerous illness he is prevented from fulfilling his obligation. His incapacity to keep his promise, owing to his illness, discharges the contract, and he is not liable in damages for its breach.1

143. A, a sawyer, contracts with B to work for a definite term in B's mills. During the term an epidemic of cholera becomes prevalent in the vicinity of the mill, rendering it unsafe to remain there, and A quits work in consequence thereof. A may recover on a quantum meruit for the work done, and he is not liable in damages for breach of the contract since the danger is adequate to justify a rescission.

The court in a Maine case holds: 2

The plaintiff was under no obligation to imperil his life by remaining at work in the vicinity of a prevailing epidemic so dangerous in its character that a man of ordinary care and prudence, in the exercise of those qualities, would have been justified in leaving by reason of it, nor does it make any difference that the men who remained there at work after the plaintiff left were healthy, and continued to be so. He could not then have had any certain knowledge of the extent of his danger. He might have been in imminent peril, or he might have been influenced by unreasonable apprehensions. He must, necessarily, have acted at his peril, under the exercise of his judgment.

1 Robinson v. Davidson, supra.

2 Lakeman v. Pollard, 43 Me. 463.

EXAMPLE

144. A, a school teacher, is hired for a definite term. During the term smallpox prevails in the vicinity of the school for a period of several weeks, during which time the school board keeps the school closed. A is entitled to his salary during the period of suspension.

This was decided by the court in a Michigan case:

1

The plaintiff continued ready to perform, but the district refused to open its houses and allow the attendance of pupils, and it thereby prevented performance by the plaintiff. Admitting that the circumstances justified the officers, and yet there is no rule of justice which will entitle the district to visit its own misfortune upon the plaintiff. He was not at fault. He had no agency in bringing about the state of things which rendered it eminently prudent to dismiss the schools. It was the misfortune of the district, and the district and not the plaintiff ought to bear it.

EXAMPLE

145. A employs B to work on his farm for six months. After B has worked three months A dies. The contract is discharged. B is not obliged to complete the term as the servant of A's executor or administrator.

148. Performance prevented by the promisee.— When the promisee prevents the performance of the contract the promisor is not liable, of course, for any breach on his part. But the promisee is liable for breach on his part.

EXAMPLES

146. A employs B to construct a residence for him for which A promises to pay B $6,000. Without fault on B's part, A 1 Dewey v. Alpena School District, 43 Mich. 480.

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