Connecticut. The latter state sued him on the bond and he was held liable: first, because he permitted B to leave Connecticut; and secondly, because the retention of A by the state of Maine was not to be considered as an act of law in Connecticut. The minority view of the court decided, however, that since extradition was sanctioned by the laws of the United States, it might properly be assumed that it was an act of law.

There are cases where although an act of law is involved, the obligation is not discharged. An injunction which is issued on the application of a third party restraining one of the parties of the contract does not discharge him of his obligations to the other party. 80 The court takes the view that it is the act of a third party rather than a direct act of law which creates the impossibility of performance. Similarly, it is held that one who contracts to manufacture and sell a certain kind of machinery cannot refuse to perform because such a machine will infringe an existing patent.81

War. Acts of war may render the performance of a contract impossible. Mere insurrections, strikes and riots, however, do not constitute acts of war to excuse such performance.82 It must be an armed conflict between organized nations. Thus, the loading of a cargo at a foreign port after a declaration of war with that country would be illegal and the performance of a charter party is thereby excused.88

1

80 Contracting Co. v. Campbell, 2 Cal. App. 534.

81 E. W. Bliss Co. v. Buffalo Tin Can Co., 131 Fed. 51,

82 Summers v. Hibbard, etc., Co., 153 Ill. 102.

83 Esposito v. Bowden, 7 E. & B. 763 (Eng.).

The doctrine that war only suspends the operation of contracts has been accepted by American courts. Thus, during the Civil War,84 the hostilities suspended the judicial enforcement of contracts, and their obligations did not cease. The remedy thereon revived with the restoration of peace. This is an equitable doctrine, and consequently may not be invoked in order to consider as suspended a contract which it would be unjust to revive, as where time is of the essence.85

186. Existence of subject matter and place.— Where the existence of a specific thing is essential to the performance of the contract, its destruction without the default of either party, operates as a discharge. If it is evident from the nature of the contract that the parties contracted on the basis of continued existence, the subsequent destruction of the subject matter will excuse performance.

86

In the case of Taylor v. Caldwell,87 A agreed to rent a music hall to B for a series of concerts. Before the days set for performance arrived, through the fault of neither party, the hall was destroyed by fire. The suit was for losses arising from the non-performance of the contract. The court held that the destruction of the hall relieved the defendant from liability.

"In the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject

84 Semmes v. City Fire Insurance Co., 13 Wall. 158 (U. S.). 85 New York Life Insurance Co. v. Statham, 93 U. S. 24.

86 Dexter v. Norton, 47 N. Y. 62.

87 3 B. & S. 826 (Eng.).

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."

Where the subject matter ceases to exist through no fault of the plaintiff and because the defendant is at fault, the latter has no defense to an action. In the case of Soley v. Jones,88 A contracted with B to do part of the work which A had contracted to do for C, the Boston Transit Commission. In the contract between A and C, it was provided that upon the certificate of an engineer, reciting the inability of A to complete the work in the time provided, C might terminate the agreement. A did not, however, provide for such a contingency in his contract with B. The commission terminated the agreement under the provision just given, and necessarily B could not complete the performance of his contract with A. Thereupon, B sued A for the benefits lost by such termination by C and A set up the defense of impossibility. Although B knew of the terms of A's contract with the commission, the court refused to add its terms to the contract of A and B, holding that “it is only where an unanticipated event happens, which was not in the contemplation of the parties at its inception, and upon which the continued existence of the contract must depend, that upon the happening of the event the contract is dissolved, and the promisor relieved from further performance. Having made themselves responsible for the existence of the subject matter of the contract until with88 95 N. E. 94 (Mass.).

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out fault on the plaintiff's part it had been performed, they are not within the exception."

If the thing which is destroyed is the very thing which one party has contracted to construct and deliver, as a piece of machinery, its destruction is no excuse for non-performance.89

A series of three cases illustrates the principles set forth as to the rules of impossibility where the subject matter does not continue in existence.

(1) If A agreed to furnish B with the potatoes of a certain tract of land called Blackacre, there is an implied condition that there will be potatoes grown on Blackacre; otherwise, the performance is excused by impossibility.90

(2) If A agreed to furnish B with 200 tons of potatoes of the crop of 1914, and there were no potatoes, it would be a question of construction as to what the crop of 1914 meant. But there would be an implied condition that there was a crop of 1914.

(3) If A agreed generally to furnish 200 tons of potatoes, there would be no condition unless no potatoes were grown anywhere.91 If any were grown, A must furnish them.

Similarly, in the case of Turner v. Goldsmith,92 A agreed to work for the defendant, B, as a salesman for five years. In three years the factory burned, and the defendant decided not to rebuild. A sued B for breach of contract. He was allowed to recover because the contract could yet be performed by B.

89 Logan v. Consolidated Gas Co., 107 App. Div. 384 (N. Y.). 90 Howell v. Coupland, L. R. 1 Q. B. D. 258 (Eng.).

91 Anderson v. May, 50 Minn. 280, LEADING ILLUSTRATIVE Cases. 92 1891, 1 Q. B. 544 (Eng.).

He could have rebuilt or purchased shirts to be sold by B from other firms.93 But if the goods were to be made at a particular factory, which burned down, B would have been excused from performance.9*

Building contracts. Generally, in building contracts, if the defendant contracts to furnish labor and materials and to build a house on the land of the plaintiff, the destruction of the house before he completes his contract will not excuse the defendant from performance. Furthermore, he may not retain the instalments which have been paid to him on account.95 But if the defendant agrees to repair an existing house or to furnish part of the labor and materials for a house for the plaintiff towards the erection of which the plaintiff is to furnish other labor and materials, and the house is destroyed without the fault of the defendant, he is excused from further performance.96

Leaseholds. The common law doctrine is that if a leasehold building is accidentally destroyed, nevertheless the lessee's obligation to pay rent continues.97 Furthermore, if the lease contains an express covenant on the part of the lessee to make repairs or to surrender the premises at the expiration of the term in as good condition as at the beginning of the tenancy, the common law doctrine requires the performance of such covenants.98 Statutes, however, have

93 Clarksville Land Co. v. Harriman, 68 N. H. 374. 94 Stewart v. Stone, 127 N. Y. 500.

95 Wald's Pollock, Contracts (3d ed.), p. 528, note; Stees v. Leonard, 20 Minn. 494.

96 Butterfield v. Byron, 153 Mass. 517, LEADING ILLUSTRATIVE CASES. 97 Hallett v. Wylie, 3 Johns. 44 (N. Y.); Fowler v. Bott, 6 Mass. 63. 98 Polack v. Pioche, 35 Cal. 416; Hoy v. Holt, 91 Pa. St. 88.