should have protected themselves by some stipulation, if they intended to relieve themselves from the consequences of fortuitous impediments to the due performance of their contract (a). A charterer having by charterparty contracted to load a ship with a full cargo of coal with the usual despatch; the term "usual despatch" was held to mean the usual time necessary for a cargo provided ready for loading, and the charterer was not excused because he was prevented from providing a cargo for loading by a severe frost which closed up the access to the colliery by a canal (b). But where a charterparty was made of a similar kind for loading coal at a particular colliery, and at the time of making it both parties were aware that the colliery was not at work for want of repairs, but expected it to be at work in a short time, it was held that the freighter was not liable for the delay in loading occasioned by the want of repair of the colliery, and that it was sufficient if he loaded within a reasonable time after the colliery got to work, the contract having been intended to apply to the known state of things at the colliery at the time (c). Upon this principle, a lessee of a house who covenants generally to repair, is bound to rebuild it, if it be burned by an accidental fire (d). On a covenant to build a bridge and to keep it in repair for a certain time the covenantor was held bound to rebuild the bridge, although after the original building it had been destroyed by an extraordinary flood without any default on his part (e). A contract was made to build a bridge on a certain site and maintain it for seven years, and it appeared to be impossible to build a bridge that would stand on that site; the contractor was held liable for damages (f). An insurance company contracted to reinstate a house which had been damaged by fire, and subsequently the commissioners of sewers ordered the house to be taken (a) Adams v. Royal Mail Steam Packet Co., 5 C. B. N. S. 492. (b) Kearon v. Pearson, 7 H. & N. 386; 31 L. J. Ex. 1. (c) Harris v. Dreesman, 23 L. J. Ex. 210. (d) Earl of Chesterfield v. Bolton, Comyns, 627; Bullock v. Dommitt, 6 T. R. 650; Digby v. Atkinson, 4 Camp. 275; Re Skingley, 3 Mac. & G. 221; 20 L. J. C. 142. (e) Brecknock Navigation v. Pritchard, 6 T. R. 750; and see Dyer, 33 a (10). (f) Errington v. Aynesly, 2 Bro. C. C. 341. ing. Impossibi- down as dangerous, from defects not caused by the fire; the lity subsequent to company were held bound by their contract notwithstanding, contractand a plea that the commissioners had caused the house to be pulled down was held bad on demurrer (a). In an action for breach of a promise to marry, the defendant pleaded that after making the promise he became through disease incapable of marriage without danger to his life; but the plea was held no defence to the action (b). Contracts conditional perform ance. The case of Lawrence v. Twentiman (c) has been sometimes cited to the contrary effect; it is reported as follows:—“If a man covenant to build a house before such a day, and the plague appears there before the day and continues until after the day, that will excuse him from the breach of covenant in not doing it before the day, for the law will not compel him to risk his life; but he must do it afterwards." This case has been explained upon the ground that time was not of the essence of the contract, so that it was a contract to build the house within a reasonable time; and it was said that unless it could be so explained, or unless some statute rendered the building illegal by reason of the plague in the neighbourhood, the case could not be sustained" (d). On the other hand, contracts may be made conditional upon con- upon the continued possibility of performance. Agreements tinued pos- sometimes occur which are absolute in their terms and consibility of tain no express reservation of particular events which may render the performance impossible, but which from their nature sufficiently denote an intention of the parties that they shall apply only to a particular state of things contemplated by the parties, and that they shall not apply in certain events which render the performance impossible; and in such agreements a condition is implied that they shall be void under those circumstances to which they are manifestly not intended to apply (e). Contracts having for object some performance or matter (a) Brown v. Royal Ins. Co., 1 E. & E. 853; 28 L. J. Q. B. 275; Erle, J., dissentiente. (b) Hall v. Wright, E. B. & E. 746, 765; 27 L. J. Q. B. 345; 29 ib. 43. (c) 1 Roll. Abr. p. 450, pl. 10. (d) See per Lord Campbell, C.J., Hall v. Wright, E. B. & E. 746, 762; per Martin, B., ib. 790. (e) Taylor v. Caldwell, 3 B. & S. 826, 833; 32 L. J. Q. B. 164, 166. which is strictly personal to the parties are commonly made upon the implied condition that they should be binding only so long as the parties live, though made without any express qualification to that effect; and the death of a party, rendering the object of the contract impossible, at the same time puts an end to the contract (a). Thus, a contract to marry is impliedly conditional upon the continued existence of the parties; and the executor of a deceased party acquires no right, and sustains no liability under the contract, even for a breach committed before the death (b). Contracts of agency or for personal services are, in general, revoked by death; and the executor of the agent or contractor cannot be sued upon them, except for breaches committed before the death (c). A contract made by the plaintiff with a firm consisting of the defendant and his partner, for employment as their agent during four years, was held to be subject to the implied condition that all the parties so long lived, and to be terminated by the death of the defendant's partner (d). Contracts of bailment of goods, as, upon loan, or for work to be done upon them, are commonly made upon the implied condition of the continued existence of the thing delivered; and if the return of the thing becomes impossible because it has perished, without any fault of the bailee, he is excused from the performance of the promise to re-deliver the chattel, according to the maxim, "res perit domino" (e). The plaintiff delivered a horse to the defendant who promised to re-deliver it on request, and the horse having died before request, the defendant was held to be excused (ƒ). The plaintiff and the defendant entered into an agreement for giving a series of concerts at a music hall, by which the defendant undertook to provide the hall, and the plaintiff (a) 2 Wms. Ex. 5th ed. 1560; Taylor v. Caldwell, 3 B. & S. 826, 835; 32 L. J. Q. B. 164, 167. (b) Chamberlain v. Williamson, 2 M. & S. 408. (c) 2 Wms. Ex. 5th ed. 1560; per Parke, B., Siboni v. Kirkman, 1 M. & W.418,423; Campanari v. Woodburn, 15 C. B. 400. (d) Tasker v. Shepherd, 6 H. & N. 575; 30 L. J. Ex. 207. ; (e) Taylor v. Caldwell, 3 B. & S. 826, 838; 32 L. J. Q. B. 164, 168; Williams v. Lloyd, Sir W. Jones, 179 Menetone v. Athawes, 3 Burr. 1592; Rugg v. Minett, 11 East, 210; Bayne v. Walker, 3 Dow. 233, 238; Jones on Bailments, 119; Story on Bailments, §§ 25, 26, 426, 437. (f) Williams v. Lloyd, supra. impossi bility caused by was to provide the rest of the entertainment, but before the time appointed the hall was destroyed by fire; it was held that the contract was conditional upon the existence of the hall, and was put an end to by its destruction, and, therefore, no action would lie against the defendant for not providing the hall (a). The plaintiff contracted to erect certain machinery in a building of the defendant, and whilst the works were in progress, the building was destroyed by an accidental fire; it was held to be an implied term of the contract on the part of the defendant that the building should continue suitable for the reception of the machinery, which was not excused by the fire, and that he was liable to compensate the plaintiff for the value of the work done (b). Charterparties and contracts for the carriage of goods in ships, being peculiarly liable to be interfered with in their performance by occurrences over which the shipowner has no control, generally contain an exceptive clause guarding him from liability for such occurrences. The common form of this clause runs as follows:-" The act of God, the king's enemies, fire and all and every other dangers, and accidents of the seas, rivers and navigation of what nature and kind soever excepted" (c). The contract of carriers within the realm is by common law and without any express stipulation subject to the exception of loss or damage happening by the act of God or the Queen's enemics (d). In the lease of a house containing a covenant to repair it is common to except casualties by fire or tempest, in the absence of which exception, the lessee would be bound to repair whatever damage happened to the premises by fire or otherwise (e). Subsequent If the promisee has himself caused the impossibility of performance the promiser is. excused. "In all cases where a condition of a bond, recognizance, etc., is possible at the time of the making of the condition, and before the same can be performed the condition becomes impossible by the pro misee. (a) Taylor v. Caldwell, 3 B. & S. 826; 32 L. J. Q. B. 164. (b) Appleby v. Meyers, 35 L. J. C. P. 295; L. R. 1 C. P. 615. (c) As to this clause see Russell v. Niemann, 34 L. J. C. P. 10. (d) See ante, p. 358. the act of the obligee, then the obligation is saved" (a). "And so it is if A. be bound to B. that J. S. shall marry Jane G. before such a day, and before the day B. marry with Jane, he shall never take advantage of the bond; for that he himself is the mean that the condition could not be performed" (b). By a contract for work it was agreed that the work should be finished by a certain day, and if not, a penalty of so much a day should be paid for each day beyond; the employer was held not to be entitled to claim the penalty for delay caused by his own interference (c). The promiser is not excused by an impossibility caused by himself (d). If the supervening impossibility is caused by the law the Subsequent performance is excused (e). A bond was conditioned that impossibility caused the treasurer of certain turnpike roads should account for by the law. and pay all monies coming to his hands as treasurer according to the direction of the then general turnpike Act; this Act having been subsequently repealed, and the condition as to accounting according to it having thereby become impossible through the act of Legislature, it was held that the condition was saved (f). The Corporation of London, empowered by various Acts of Parliament relating to the River Thames, borrowed money on the security of bonds. conditioned for the payment of certain yearly sums out of the tolls and duties granted and made payable by virtue of the said Acts; by the Thames Conservancy Act, subsequently passed, all the right of the Corporation under the former Acts as well as the power to receive and apply the tolls abovementioned were taken away from the Corporation and vested in a new body called the Conservators of the Thames; it was held that, the performance of the condition having been rendered impossible by the Act of Parliament, the obligation was discharged (g). Impossibility occasioned by the acts or law of a foreign state does not excuse the performance, unless excepted in (a) Co. Lit. 206 a. (b) Co. Lit. 206 b. (c) Holme v. Guppy, 3 M. & W. 387; Russell v. Bandiera, 13 C. B. N. S. 149; 32 L. J. C. P. 68. (d) Bigland v. Skelton, 12 East, 436; Beswick v. Swindells, 3 A. & E. (e) Doe v. Rugeley, 6 Q. B. 107. |