the law, for although some acts of God will serve to excuse performance, as for instance the death of A who promised to serve B, it is not always possible to determine what is an act of God. 184. Impossibility of performance created by a party. If the performance of a promise is made impossible by the act of the promisee either before the time for performance arrives or in the course of performance, the promisor is discharged from his obligations. Moreover, he may sue at once for breach of the contract, and as if A had renounced his liability. But if the performance is made impossible by the act of the promisor, the impossibility thus created is no defense. 63 Where A agrees to convey a piece of land to B on a certain day, but before that time arrives A conveys to C, B is discharged from the obligations of the contract and may sue A at once and regardless of whether or not the time for performance has arrived. Similarly, if X promises to marry Y in six months, but instead marries Z within three months, Y may sue X at once.64 It is the act of the promisor which prevents performance; hence he is liable. In Lovelock v. Franklyn,65 A promised to assign to B all his interest in a lease within seven years. Before the end of that period, A assigned his whole interest to another person. B was permitted to sue at once. The court held that "the plaintiff has a right to say to the defendant, 'You have placed yourself 63 Wolf v. Marsh, 54 Cal. 228; Delamater v. Miller, 1 Cowen 75 (N. Y.), LEADING ILLUSTRATIVE CASES. 64 King v. Kersey, 2 Ind. 402. 65 8 Q. B. 371 (Eng.). in a situation in which you cannot perform what you have promised; you promised to be ready during the period of seven years, and during that period I may at any time tender you the money and call for an assignment, and expect that you should keep yourself ready; but if I now were to tender you the money, you would not be ready; this is a breach of the contract.""" Impossibility created by the promisor during the course of performance excuses the promisee from performing. In the case of Planche v. Colburn,66 a publisher engaged an author to write a treatise. Before it was completed, the publisher abandoned the publication. The author was excused from further performance, and was entitled to remuneration. The abandonment of the publication discharged the contract. But where an Englishman, who was engaged as fireman on a Japanese warship, was informed when war was declared between China and Japan that a performance of his contract would bring him under certain penalties as to foreign enlistments, it was held that he was entitled to leave the ship and sue for his wages, since the act of the Japanese government had made his contract legally impossible."7 Distinctions. Prevention of the happening of conditions is to be distinguished from prevention of the performance of a promise. The latter excuses the promisor from liability for non-performance. The former entitles the party prevented to a right of 66 8 Bing. 14 (Eng.). 67 O'Neil v. Armstrong, Mitchell & Co. (1885), 2 Q. B. 418 (Eng.); Delamater v. Miller, 1 Cowen 75 (N. Y.), LEADING ILLUSTRATIVE CASES. action, although the condition has not been performed.68 While an act of prevention will frequently be a prevention both of performance by the other party of his promise and also of the condition qualifying the liability of the preventing party, nevertheless, the condition may be something which neither party has promised shall be performed. In such a case, it may be important to distinguish between prevention as excusing a condition and as excusing performance of an obligation.69 Furthermore, it is often difficult to determine whether a case involves the rule under discussion or the doctrine with reference to impossibility created by the local law. Usually, however, an analysis of the facts will indicate the true principle to be applied. Thus, where without compulsion on the part of the board of health, a school board closes the schools because of the prevalence of contagious diseases, the impossibility of performance thus created is generally held not to excuse payment of the salaries to the teachers.70 But where the board of health closes the school, the impossibility is held to excuse such payment." In the first case, it is an act of the promisor of the contract. In the second situation it is an act of law. 185. Impossibility by acts or change of law.— Thus, a further exception to the rule that impossibility does not discharge a contract, is the doctrine that where an agreement may not be legally per 68 See Chapter XIV. 69 Williston, Sales (2d ed.), § 193. 70 Dewey v. Union School District, 43 Mich. 480. 71 School District v. Howard, 5 Neb. Unoff. 340, 98 N. W. 666. 1 formed by reason of acts of the law, as those of a legislature, or of an executive or a court, the parties are excused from carrying out their promises. Although the performance is physically possible, since it would be unlawful to carry out the agreement, the law discharges its obligations. In the case of People v. Globe, etc., Insurance Co.,72 the company was dissolved in an action by the attorney-general. A, who had entered into an agreement with them for five years' employment, alleged that he had a claim for breach of contract upon the fund in the receiver's hands. The court held that by the act of dissolution, whereby the company figuratively died, the contract was discharged, and that no liability arose in favor of A. But a voluntary dissolution of a corporation does not discharge its contracts for personal service,73 because the impossibility is of its own creation. Furthermore, where the corporation is dissolved by the state because of its wrongdoing, it would seem that the dissolution likewise should not be a defense. Similarly, dispossession by the military authorities of one's own country will relieve a lessee from the obligation to pay rent for the period of dispossession.74 This case falls under the rule that where the law prevents performance of a contract for a limited time only, the obligation of the contract is suspended but not discharged.75 Change of law. A change in the law may also 72 91 N. Y. 174. 73 See subject, PRIVATE CORPORATIONS. 74 Gates v. Goodloe, 101 U. S. 612. 75 Wald's Pollock, Contracts (3d ed.), p. 525, note. discharge the contract. In Baily v. DeCrespigny," A leased land from B for 89 years. B retained the adjoining premises and covenanted that neither he nor his assigns would during the term erect any but ornamental buildings. But the English Parliament passed an act compelling B to part with his land to a railway company, which built a station thereon. A sued B on the covenant, and it was held the impossibility created by the statute excused him from performance. Another situation arises where the act becomes impossible in law because the law makes it impossible in fact, and not because of any prohibition. Thus B gave a bond for A's appearance in court when A was charged by the state with counterfeiting. Later A was arrested, convicted, and sent to prison by the United States authorities on a charge for the same offense. B was sued by the state on his bond for not producing A. It was held that B was not liable." The law made it impossible for him to perform in fact. The law of a foreign country 78 or sister state being a question of fact, impossibility arising because of an act thereby or a change therein does not discharge the contract. In Taylor v. Tainter," A gave a bond for B's appearance in a Connecticut court. Later, B went to New York, where he was arrested and extradited to Maine. In the latter state he was sent to prison. Consequently, A could not produce B in 76 L. R. 4 Q. B. 180 (Eng.). 77 Commonwealth v. Overby, 80 Ky. 208. |