sible to give them any definite meaning, the agreement is necessarily void (a). Impossi- The phrase "impossibility arising by the act of God" is bility by act of God. used on some occasions as denoting a kind of impossibility having peculiar incidents and consequences (b). Certain accidents as death, tempest, etc., seem to be intended by the phrase. It is obvious, however, that all such accidents are referable to natural and not to supernatural causes, and therefore they are all events, which, though beyond the control, are within the possible contemplation of the parties, and might be and often are provided for in their agreement. The contract of a carrier, by the common law, insures the goods carried, except against two events-namely the act of God and the king's enemies, "both," it is said, "so well known to all the country where they happen, that no person would be so rash as to attempt to prove that they had happened when they had not" (c). The specific events, however, excepted from the carrier's insurance as being acts of God, must be ascertained from the decisions respecting them (d). Legal impossibility. Impossi bility at time of con An act or undertaking may be absolutely impossible in regard to its legal effect or operation, that is to say, it may import to have or produce a legal effect or operation which the law does not admit of. Impossibility of this kind may be called legal impossibility. It differs from illegality in that it relates only to the legal effect which the act purports to have, and not to the question whether the act itself is allowed or forbidden by law (e). Where an absolute impossibility of performance exists at the time of making the agreement the general rule seems to (a) Guthing v. Lynn, 2 B. & Ad. 232; per Lord Tenterden, C.J., Coles v. Hulme, 8 B. & C. 568, 573; per Alderson, B., Grant v. Maddox, 15 M. & W. 737, 743; Alder v. Boyle, 4 C. B. 635; see ante, p. 179. (b) See Co. Lit. 206 a; Laughter's case, 5 Co. Rep. 21 b; Cro. Eliz. 398; Greningham v. Ewer, Cro. Eliz. 396; Williams v. Lloyd, Sir W. Jones, 179; Chit. Contr. 7th ed. 647. (c) Riley v. Horne, 5 Bing. 217, 220; and see Coggs v. Bernard, 1 Smith's L. C. 5th ed. 171; Forward v. Pittard, 1 T. R. 27. (d) See Chitty and Temple on Carriers, 36; Powell on Carriers, 73; and see Forward v. Pittard, 1 T. R. 27, 33; Briddon v. Great Northern Ry. Co., 28 L. J. Ex. 51; Taylor v. Great Northern Ry. Co., L. Rep. 1 C. P. 385; 35 L. J. C. P. 210. (e) See examples of legal impossibility, post, p. 359. known to be that there is no contract. The impossibility may be tracting,known or not known to the parties at the time of making the parties. the agreement. Where the impossibility is known to the parties at the time of making the agreement, it seems obvious that there can be no intention of performing it on the one side, and no expectation of performance on the other, and therefore the essentials of a valid promise are wanting. The impossible act cannot form the matter for a promise, or for the consideration of a promise (a). A deed of charterparty, containing a covenant that the ship should sail on her voyage on or before the 12th of February, was executed on the 15th of March; it was held that the covenant, being impossible at the time when the deed took effect, became wholly nugatory, and could not be understood as having formed any part of the contract between the parties (b). pro contract ing. So, where the matter of the agreement is legally impos- Legal im sible, which both parties are presumed in law to know, no at time of possibility valid contract can arise from such agreement. A mise made by the defendant in consideration that the plaintiff who was bailiff to J. S. would discharge the defendant from a debt which he owed to J. S., was held void, because the consideration was impossible; for the plaintiff could not legally discharge a debt due to his master (c). A bond was given conditioned for the payment to the obligee of a sum of money, upon his procuring subscribers for 9000 shares in a company to be formed for the purpose of taking an assignment of certain patents; the patents, however, contained a proviso that they should be void if assigned to more than five persons; consequently, the condition was impossible in law, and the bond was held to be void (d). An agreement was made between the plaintiffs and the defendant as follows: in consideration that the plaintiffs, who were assignees of a bankrupt, would forbear to examine the bankrupt touching certain sums he was charged with having received and not accounted for, and that the commissioners of bankruptcy would likewise forbear and desist from taking such examination, the defendant promised the (a) See ante, p. 9, 10. (b) Hall v. Cazenove, 4 East, 477. (c) Harvey v. Gibbons, 2 Lev. 161. (d) Duvergier v. Fellows, 5 Bing. 248; affirmed in error, 10 B. & C. 826. time of con to the par ties. plaintiffs to pay them the sums in question; the contract was held invalid upon grounds stated by Lord Kenyon, C.J., as follows:-"The ground on which I found my judgment is this, that every person who in consideration of some advantage, either to himself or to another, promises a benefit must have the power of conferring that benefit up to the extent to which that benefit professes to go; and that not only in fact but in law. Now the promise made by the assignees in this case, which was the consideration of the defendant's promise, was not in their power to perform, because the commissioners had nevertheless a right to examine the bankrupt, and no collusion of the assignees could deprive the creditors of the right of examination which the commissioners would procure them" (a). Impossibi- Where the parties are in ignorance that the performance lity at the agreed upon is impossible, they are under a common mistracting, take as to a matter of fact which induces them to make the not known contract. In such case the question may arise upon the construction of the terms of the contract whether it has been made expressly or impliedly conditional upon the supposed state of facts, so as not to be applicable to the real state of facts, or whether one of the parties has undertaken the responsibility of performance at all risks and in all events (b). Thus, upon the sale of a cargo of goods, which at the time of the sale was supposed to be on its voyage, but which unknown to both parties had been then entirely lost, it was held that the contract imported the condition that the ship or goods were then in existence (c). Upon the sale of a ship the vendor covenanted that he had then power to sell the ship; it was held that the covenant was not conditional upon the existence of the ship, and would be broken, if the ship had ceased to exist at the time of the sale, although both parties might have been ignorant of it (d). So, the sale of a life annuity was held to be conditional upon the annuitant being alive at the time of the sale; and the life (a) Nerot v. Wallace, 3 T. R. 17. 5 H. L. C. 673; 25 L. J. Ex. 253. having in fact ceased before the contract was made, it was held to be void and the purchase-money recoverable (a). The renewal of an insurance of a life was held to be conditional upon the insured being then alive, and he being then dead, though unknown to the parties, it was held void (b). The plaintiff made a charterparty with the defendant, by which it was agreed that the plaintiff's ship should proceed to a port named, or so near thereto as she could safely get, and there load a full cargo with which she was to sail, the cargo to be loaded at the merchant's risk and expense. The ship having received the cargo on board, it was found impossible for it when laden to cross the bar of the port, of which neither party were previously aware; the captain thereupon landed part of the cargo and required the defendant to reship it outside the bar, which he refused to do, and the ship sailed with only a part of the cargo; it was held that the plaintiff had no claim for the whole freight, nor for damages from the defendant for refusing to ship a full cargo (c). If the plaintiff had been aware that the ship could not cross the bar with the cargo on board, he might have, in the first instance, demanded the cargo to be shipped outside, being as near as the ship could safely get to the port for the purpose of the voyage (d). lity subse con- quent to contract ing. Where the performance of the promise becomes abso- Impossibilutely impossible subsequently to the making of the tract, and there is no express provision in the agreement to meet such an event, the general rule seems to be that the contract remains binding notwithstanding the supervening impossibility. This is a rule of construction founded on the grammatical meaning of the general undertaking contained in the agreement, but it gives way to an implication of a contrary intention. The question whether the contract remains applicable to the subsequent impossibility, or on whom the consequences of such impossibility shall fall, depends upon the intention of the parties, as collected from their agree (a) Strickland v. Turner, 7 Ex. 208. (b) Pritchard v. Merchants' Life Assurance Soc., 3 C. B. N. S. 622; 27 L. J. C. P. 169. (c) General Steam Navigation Co. v. Slipper, 11 C. B. N. S. 493; 31 L. J. C. P. 185. (d) Shield v. Wilkins, 5 Ex. 304. quent to contract ing. Impossibi ment. The agreement may show the intention to contract lity subsewith reference only to a particular state of facts then existing, and not with reference to any different state of facts; or it may show the intention to bind the promiser for the act or performance in all events, or to limit his responsibility to certain events only, and to except others. These are questions of construction; and where it cannot be implied that the parties have contemplated and provided for the impossibility arising, the above general rule, founded on the absolute language of the agreement, seems to apply. Accordingly, it has been frequently laid down to the effect that where there is an absolute contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although, in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burthensome, or even impossible (a). In an action on a charterparty, (not containing any exceptions) against the master of the ship for not proceeding to the port of loading, the defendant pleaded that it was impossible for him to do so by reason of contrary winds and bad weather; the plea was held bad on demurrer, Lord Mansfield saying that the defendant by the charterparty became the insurer of the risk of his reaching the port of loading (b). So, where a shipowner undertakes to take his ship to a certain port or wharf, and is prevented by the state of the tides, the delay is at his cost; and demurrage is not chargeable until the ship reaches the wharf (c). By a charterparty, the freighters contracted to load a full cargo of coals at a certain port in the customary manner; it was held that this meant a loading within a reasonable time according to the usage of the port, and the freighters were not excused by extraordinary casualties, connected with the railway and the collieries, which prevented them procuring the coals for loading; and it was said that the freighters (a) 1 Roll. Abr., tit. Condition (G. 1); Paradine v. Jane, Aleyn, 27; notes to Walton v. Waterhouse, 2 Wms. Saund. 420; Taylor v. Caldwell, 3 B. & S. 826; 32 L. J. Q. B. 164; Brown v. Royal Ins. Co., 1 E. & E. 853; 28 L. J. Q. B. 275; Kearon v. Pearson, 7 H. & N. 386; 31 L. J. Ex. 1. (b) Shubrick v. Salmond, 3 Burr. 1637. (c) Parker v. Winlow, 7 E. & B. 942; 27 L. J. Q. B. 49; Bastifell v. Lloyd, 1 H. & C. 388; 31 L.J. Ex. 413. |