s. 6. Performance (Excuse of Impossi bility). Strike. was held that they were liable (a); and the principle of this judg- CH. XXII. ment has been applied to a case of delay by a strike both of ship labourers over whom the shipowner had no control, and of labourers employed by consignees, with the result that an unloading ceased, and could not be resumed till after the expiration of the lay-days (b). So, it is no defence to an action on a Budgett v. charter-party, for not sailing on the voyage towards a port agreed Binnington. on, that the port was in a state of blockade; at least if, at the Blockade. time the charter-party was made, the blockade had been publicly notified to the English government, so that the defendant must be taken to have been aware of it (c). And the performance of a contract of affreightment is not discharged, but only suspended, by an embargo being laid on the ship in the course of the voyage (d). And where the lessee in a coal lease covenanted to pay a certain Coal mine proportion of the value of the coals to be raised, unless prevented accident. by unavoidable accident from working the pit: it was held, that if the accident were of such a nature, that to work the pit was not physically impossible, but such working might have been effected, although at an expense greater than the value of the coals to be raised, the defendant was liable (e). Perishing of subject matter of contract. By fire. Taylor v But in contracts from the nature of which it is apparent, that the parties contracted on the basis of the continued existence of a given person or thing, a condition is implied, that if the performance become impossible, from the perishing of the person or thing, without any default on the part of him from whom performance of the contract is claimed, that shall excuse such performance (ƒ). This appears best from Taylor v. Caldwell (f), in which the defendant was held excused from payment of damages for non-performance of an agreement to let a music hall to the plaintiff for entertainments on four non-consecutive days, by reason of the hall having been burnt down before the first of the days arrived; and from Nicholl and Knight v. Ashton, Eldridge Stranding of ship. & Co. (g), in which a contract to ship a cargo of cotton-seed by a (a) Porteus v. Watney (1878), 3 Q. B. D. 534, C. A. (b) Budgett v. Binnington, [1891] 1 Q. B 35. (c) Medeiros v. Hill (1832), 8 Bing. 231. Where the charter-party contains an exception of "the restraint of princes," the occurrence of a blockade will excuse its performance; Geipel v. Smith (1872), L. R., 7 Q. B. 404; and see Smith and Service v. Rosario Nitrate Co., [1894] 1 Q. B. 174. (d) Hadley v. Clarke (1799), 8 T. R. 259; 4 R. R. 641. C.C. (e) Morris v. Smith (1783), 3 Dougl. 279. (f) Taylor v. Caldwell (1863), 3 B. & S. 826; followed in Appleby v. Myers (1867), L. R., 2 C. P. 651 (destruction by fire), Ex. Ch. ; and Howell v. Coupland (1876), 1 Q. B. D. 258, C. A. (failure of particular potato crop in particular fields). As to sale of perished goods, see p. 341, ante. (9) Nicholl and Knight v. Ashton, Eldridge & Co., [1901] 2 K. B. 126, C. A. 39 Caldwell. Nicholl and Co. CH. XXII. 8. 6. Performance (Excuse of Impossibility). Postponement of show. Krell v. named ship in January was followed by the stranding of the ship in that month and consequent impossibility of loading in that month, and an action for failure to ship was held not to be maintainable. And the rule of Taylor v. Caldwell applies to a contract to take a room from which to view a street show on a fixed day, as was held by Darling, J., and afterwards by the Court of Appeal, in Krell v. Henry (h). In that case the defendant agreed to take a flat of the plaintiff for entire use during the days (not the nights) of the 26th and 27th of June, on which days processions incident to the coronation of the King were proclaimed to pass the flat, the consideration being a deposit of 251. and a promise to pay 501. on the 24th June. The coronation and therefore the processions not taking place on either day owing to the illness of the King, the defendant declined to pay the 501., and counter-claimed the 251. deposit when sued for the 50l. Darling, J., gave judgment for the defendant on both defence and counterclaim, and the Court of Appeal affirmed that judgment so far as relating to the defence. The counter-claim was voluntarily abandoned in the Court of Appeal, the High Court having previously held that the prices of seats on stands paid in advance under similar circumstances could not be recovered back by the purchasers (i); and the subsequent decision of the Court of Appeal in Chandler v. Webster (k) is to the same effect, Romer, L.J., observing that: 66 'Where there was an agreement which was based upon the assumption by both parties that a certain future event would take place, and that event formed the foundation of the contract between the parties, then if, without the default of either party and owing to circumstances which were not in their contemplation when the agreement was made, it happened that before the time fixed for the event it was ascertained that the event could not take place, the parties were thenceforth both free from any subsequent obligation cast upon them by the agreement; but, except in cases where the contract could be treated as rescinded ab initio, any payment previously made and any legal rights previously accrued according to the terms of the agreement would not be disturbed ” (1). (h) Krell v. Henry, [1903] 2 K. B. 740, C. A. (i) Blakeley v. Muller, Hobson v. Pattenden (1903), 88 L. T. 90, per Lord Alverstone, C.J. (agreeing with Darling, J., on the main point), and Wills and Channell, JJ.; Clark v. Lindsay (1903), 88 L. T. 198. See further, Elliott v. Crutchley, [1904] 1 K. B. 565, C. A. ; and (approving Blakeley v. Muller) Civil Service Co-operative Society v. General Steam Navigation Co., [1903] 2 K. B. 756, C. A.; Wyatt Paine on Bailments, at p. 107. (k) Chandler v. Webster, [1904] 1 K. B., C. A. (1) But in the distinguishable Herne Bay Steamboat Co. v. Hulton, [1903] 2 K. B. 683, C. A., the same three judges (Williams, Romer, and Stirling, L.JJ.), who shortly afterwards decided Krell v. Henry, had held (reversing Grantham, J.), that the hirer of a steamboat for viewing the naval review and to cruise round the fleet, was liable for the hire notwithstanding the official cancellation of the review. (b) Act of the Law. CH. XXII. Performance build. Not to build. Baily v. De The non-performance or non-observance of a contract will be excused where it is occasioned by act of law (m), as where a covenant to build a workhouse was discharged by the operation of the Poor Law Amendment Act, 1834 (n); and where a railway Covenant to company, under their compulsory powers derived from the Lands Clauses Act, took a piece of land of a lessor on which, being adjoining premises, he had covenanted with the lessee that neither he nor his assigns would build, and erected a station upon it (o). And the rule on this subject has been thus stated:-"The difference where an Act of Parliament will amount to a repeal of a covenant, and where not, is this: where a man covenanted not to do a thing which it was lawful for him to do, and an Act of Parliament comes after and compels him to do it, there the act repeals the covenant; and rice versâ; but where a man covenants not to do a thing which was unlawful at the time of the covenant, and afterwards an act makes it lawful, the act does not repeal the covenant" (p). So, the non-performance of a contract will be excused, where such non-performance is occasioned by an act done by public authority (q). (c) Act of God. Although, in general, the non-performance of a contract, Act of God. absolute in its terms, will not be excused, because performance thereof has been rendered impossible by the act of God (r), yet there are cases in which-on the principle laid down in Taylor v. Caldwell (s)-this will be implied as a condition of the contract. E.g., if there be a covenant for personal service, and the per- Personal formance thereof be prevented by the act of God, that will excuse (m) Per Cur., Doe d. Lord Anglesea v. Churchwardens of Rugeley (1844), 6 Q. B. 107, 114; Baily v. De Crespigny (1869), L. R., 4 Q. B. 180; Brown v. Mayor, &c., of London (1863), 13 C. B., N. S. 828; Wynn v. Shropshire Union Rail. Co. (1850), 5 Ex. 420, 440; Davis v. Cary (1850), 15 Q. B. 418, 425. (n) Doe d. Lord Anglesea v. Churchwardens of Rugeley, supra. (0) Baily v. De Crespigny, supra. (p) Per Holt, C.J., Brewster v. Kitchin (1678), 1 Ld. Raym. 317, 321; citing Dyer, 27, pl. 178, 186, 187, 188; and 48, pl. 5. And see Newington Local Board v. Cottingham Local Board (1879), 12 Ch. D. 725, 731. (q) Melville v. De Wolf (1855), 4 E. & B. 844, 850; Esposito v. Bowden (1857), 7 E. & B. 763, Ex. Ch. ; Ford v. Cotesworth (1870), L. R., 5 Q. B. 127, 544, Ex. Ch.; Rouquette v. Overmann (1875), L. R., 10 Q. B. 525; Cunningham (r) Per Willes, J., delivering the judg If a duty is cast upon any one by the common law, the act of God will excuse him from the performance of that duty. Id. If a condition, which was possible at the making thereof, become impossible by the act of God, the obligation is discharged. See Shep. Touch. 382; Bac. Abr. Conditions (Q); Cro. Eliz. 396, 398; Co. Litt. 206 a. (s) Taylor v. Caldwell (1863), 3 B. & S. 826, and p. 609, ante. service. s. 6. Performance (Excuse by CH. XXII. the non-performance of the covenant (t); as where an apprentice was disabled by permanent ill-health (u); and where a pianiste was incapacitated by illness from performing at a concert for Act of God). which the plaintiff had engaged her (x). And so it is said, that if one covenant to leave a wood in the same plight as he finds it, and some of the trees be blown down by the wind, the covenant is not broken; for it is now become impossible to be done, by the act of God, and in this case the covenantor is not bound to supply it (y). Illness. But where the performance of the contract is rendered impossible, by the act of the party who is chargeable thereon, such impossibility affords no answer to an action on the contract (z) ; and in all cases in which the non-performance of a contract is attempted to be excused, on the ground of the performance thereof having been impossible, the fact of its having been impossible must be clearly established (a). (d) Failure of the other Party. If a man contract to do an act, in consideration that another has contracted to do certain things on his part; and it turn out, before anything is done under the contract, that the latter is unable to do what he has engaged to do, the contract is at an end (b). (e) Performance of Part. The non-performance of one part of a contract is not excused, And accordby showing performance of another part thereof. ingly, where the defendant contracted to make and deliver to the plaintiff a quantity of iron rails of a certain quality; a plea which stated that the rails were, by the contract, to be inspected, before delivery, by an agent of the plaintiff, who was to be at liberty to approve and accept such of them as he should think fit; and that the rails in question were accordingly so inspected and approved, and accepted in performance of the contract by the agent of the plaintiff, was held bad;-inasmuch as evidence of approval and acceptance by the inspector, would afford no proof of the performance of the stipulation as to quality (c). (t) Boast v. Firth (1868), L. R., 4 C. P. 1; Robinson v. Davison (1871), L. R., 6 Ex. 269. (u) Boast v. Firth, supra. (a) Robinson v. Davison, supra. (y) Shep. Touch. 173. (2) Beswick v. Swindells (1835), 3 A. & E. 868, Ex. Ch. (a) See Tufnell v. Constable (1838), 7 A. & E. 798. (b) Per Cur., Chanter v. Leese (1838), 4 M. & W. 295, 311; Duke of St. Albans v. Shore (1789), 1 H. Bl. 270. (c) Bird v. Smith (1848), 12 Q. B. 786; 12 Jur. 916. (f) Renunciation. CH. XXII. s. 6. Performance tion). De la Tour. If, before the time arrives at which a party is bound to perform (Renunciaa contract, he expresses an intention to break it, this, of itself, entitles the other party, at his election, to act upon such Renunciation. expression of intention as a renunciation of the contract, to treat it as a breach of the contract and to sue for the breach forthwith (d), as was held in Hochster v. De la Tour, where a travelling Hochster v. courier sued his employer, or to wait until the time for performance, and then sue (e); and if such expression of intention remain unretracted, when the time arrives for the other party to perform his part of the contract, this fact will dispense with such performance (ƒ). The cases on this point have been frequently (g) considered, and most recently in Rhymney Railway Co. v. Brecon and Merthyr Tydfil Junction Railway Co. (h), where it was laid down (1) that if there is a distinct refusal by one party to be bound by the terms of a contract in the future, the other party may treat the contract as at an end; (2) that short of such refusal, the true principle is to ascertain whether the action of the party who is breaking the contract no longer intends to be bound by its provisions; and (3) that for this purpose the failure to perform must go to the root of the contract. (g) No Apportionment. ment. Cutter v. It is also a general rule, that an entire contract cannot be No apportionapportioned (i). So that, if a party undertake to complete a certain act, which is entire or indivisible, before his claim to Powell. remuneration is to accrue; he cannot recover for a partial performance, although the completion of the act was prevented by inevitable accident. Thus, where a sailor was to be paid a certain sum, if he proceeded and continued, and did his duty on a voyage; and he died before the voyage was completed; it was held, that his executor (d) Hochster v. De la Tour (1853), 2 E. & B. 678. (e) See Frost v. Knight (1872), L. R., 7 Ex. 111, Ex. Ch., where it was held that a man who had promised to marry upon the death of his father might, on repudiation of his promise, be sued for breach in his father's lifetime. (f) Ripley v. M'Lure (1849), 4 Exch. 345, 359; 18 L. J., Exch. 419; and see Xenos v. Danube, &c., Rail. Co. (1863), 13 C. B., N. S. 825; Cort v. Ambergate, &c., Rail. Co. (1851), 17 Q. B. 127; Philpotts v. Evans (1839), 5 M. & W. 475, 477. (g) See, e.g., Johnstone v. Milling (1886), 16 Q. B. D. 460, C. A.; Synge v. Synge, [1894] 1 Q. B. 466, C. A. (h) Rhymney Rail. Co. v. Brecon and Merthyr Tydfil Junction Rail. Co. (1900), 69 L. J., Ch. 813; 83 L. T. 111; 49 W. R. 116, per Lord Alverstone, C.J., and Rigby and Collins, L.JJ., following and applying the principles laid down by Lord Blackburn in Mersey Steel and Iron Co. v. Naylor (1884), 9 App. Cas. 434. (i) See Chanter v. Leese (1838), 4 M. & W. 295, 311; 3 Vin. Abr., tit. Apportionment. |