Impossibility rela

the contract. Thus, to an action for not delivering goods sold to be shipped at a foreign port it was held to be no defence that the goods had been confiscated by the foreign government as British property (a). So, it was held no defence to an action on a charterparty for not providing a cargo at a foreign port, that an infectious disorder prevailed there and all intercourse was prohibited by the law of the place; Lord Ellenborough said: "The question here is, on which side the burthen is to fall. If indeed the performance of this covenant had been rendered unlawful by the government of this country, the contract would have been dissolved on both sides, and the defendant, inasmuch as he had been thus compelled to abandon his contract, would have been excused for the non-performance of it, and not liable to damages. But if in consequence of events which happen at a foreign port, the freighter is prevented from furnishing a loading there, which he has contracted to furnish, the contract is neither dissolved, nor is he excused for not performing it, but must answer in damages" (b).

In an action by the freighter for not delivering goods under a contract of affreightment whereby the defendant promised to safely carry and deliver the goods of the plaintiff, the act of God, the Queen's enemies, fire, and all dangers of seas, rivers, and navigation excepted, the defendant pleaded that the goods were seized and confiscated in a foreign port as contraband by the law of the foreign country; this plea was held bad on demurrer, the obstacle to performance not coming within any of the matters excepted (c). Where a charterparty was made for the carriage of goods from a port of a foreign country (the restraint of princes and rulers excepted), the apprehension of an expected hostile embargo on British shipping in the foreign port was held to be no excuse for the master of the ship leaving the port without the cargo (d).

If the act is not absolutely impossible, but impossible only

(a) Splidt v. Heath, 2 Camp. 57 n. (a); and see Atkinson v. Ritchie, 10 East, 530.

(b) Barker v. Hodgson, 3 M. & S. 267.

(c) Spence v. Chodwick, 10 Q. B. 517; and see Storer v. Gordon,3 M. & S. 308.

(d) Atkinson v. Ritchie, 10 East, 530.

relatively to the power and circumstances of the promiser, tive to the such impossibility is, in general, immaterial, and the propromiser. miser responsible for the non-performance, whether the impossibility exists at the time of making the contract, or subsequently supervenes. Thus, a person incurring a debt may be, or may become, unable to pay it for want of money; but

"A

he is not on that account excused from his contract.
man may contract to do that which he cannot be sure that
he will be able to do; a man may, if he chooses, covenant
that it shall rain to-morrow, and if it does not, he has broken
his covenant" (a). In the old case of Thornborow v. Whit-
aker (b), the contract was, in consideration of £5, of which half-
a-crown was paid down and the rest to be paid on perform-
ance by the defendant, the defendant promised to deliver to
the plaintiff two grains of rye on the following Monday,
four grains on the Monday after, and so on, doubling the
number every other Monday for a year, and the defendant
demurred to the declaration on the ground that the contract
was impossible; the Court seemed to think that it was only
impossible with respect to the defendant's ability, which
was not such an impossibility as would make the contract
void, and said that the words 'every other Monday' must
be construed every next Monday but one, which would
bring the contract nearer to the defendant's ability of per-
formance; the counsel for the defendant, perceiving the
opinion of the Court to be against his client, offered the
plaintiff his half-crown and costs, which was accepted,
and so no judgment was given. In the similar old case of
James v. Morgan (c), the contract was to pay for a horse a
barleycorn a nail, doubling it every nail, which came to 500
quarters of barley, there being thirty-two nails in the shoes
of the horse; the judge directed the jury to give the plain-
tiff the value of the horse in damages, which they did, but
on what grounds this direction was given does not appear.

Promises or undertakings for the acts or conduct of a Underthird person which are beyond the control of the promiser, the act of a taking for may be impossible of performance relatively to him, but are third party.

(a) Per Maule, J., Canham v. Barry, 15 C. B. 597, 619; 24 L. J. C. P. 100, 106; Jones v. How, 9 C.

B. 1, 9.

(b) 2 L. Raym. 1164.
(c) 1 Levinz. 111,

Undertak nevertheless binding; and if there is any default in the act ing for the act of a third or conduct for which he has undertaken to be responsible, party. his contract is broken (a). In Lamb's case (b) a bond was conditioned for the obligor to give to the obligee such a release as by the judge of the Prerogative Court should be thought meet, and the judge did not appoint or devise any release; the bond was held to be forfeited, for the obligor was bound to procure the judge to have devised a release. So, a covenant to enfeoff a third person is not discharged by his refusal to accept livery of seisin (c). So, a bond or covenant undertaking to pay a sum of money, to be fixed by the valuation of a third person, is not excused by reason of that person refusing to make a valuation (d). The defendant, the lessee of a mill, covenanted to leave the millstones in as good condition as he found them, or to pay to the plaintiff so much as they should be damnified, the damage to be estimated by A. and B. who viewed them when the defendant first entered; in an action on the covenant for leaving the millstones damnified, the defendant pleaded that A. and B. had not estimated the damages; the plea was held bad on demurrer, on the ground that it was for the defendant to procure the estimation, otherwise he would be liable for the damages (e).

A contract for the sale of a leasehold interest by a lessee, who holds under a lease containing a covenant not to assign without licence of the lessor, is binding, though it cannot be performed without the licence of the lessor; and the vendor is held bound to obtain the licence, although the purchaser, at the time of contracting, had notice of the covenant in the lease (f). A contract made by one of the partners in a firm with a stranger to take him into the partnership is binding, although it is impossible for him to perform it without the consent of the other partners (g).

(a) Doughty v. Neal, 1 Wms. Saund. 214; Appleton v. Binks, 5 East, 148; see Hughes v. Humphreys, 6 B. & C. 680, 686; Tufnell v. Constable, 7 A. & E. 798.

(b) 5 Co. 23 b.

(c) Per Lord Kenyon, Cook v. Jennings, 7 T. R. 381, 384.

(d) More Morecomb, Cro. Eliz. 864; Studholme v. Mandell, 1 L. Raym. 279.

(e) Studholme v. Mandell, 1 L. Raym. 279; and see More v. Morecomb, Cro. Eliz. 864; Moor, 645.

(f) Lloyd v. Crispe, 5 Taunt. 249. (g) M'Neill v. Reid, 9 Bing. 68.

The defendant who had sold shares in a mining company, which could only be transferred with the approval of the directors, was held bound to procure the assent of the directors; and, the directors having refused their assent, he was held liable for a breach of his contract (a).

In the case of a resignation bond given by the incumbent of a living, it was held that the bishop's refusal to accept the resignation was no excuse for the incumbent not resigning; for that he had undertaken to resign, which implies acceptance, without which the resignation is not complete (b). The defendant undertook to pay £35 on an appointed day, or in default thereof to surrender the person of a debtor to the sheriff, and the defendant offered to surrender the debtor, but the sheriff refused to take him; it was held by Parke, B., that the contract was broken, and that the defendant was responsible for the non-surrender (c).

If a man binds himself to perform one of two things, of Impossibility of one of which one is then possible, and the other impossible, he alternative must perform that which is possible (d). Accordingly, where promises. a bond was conditioned to pay to the plaintiff a certain sum on or before the 10th January, or if default should be made in such payment to surrender to the plaintiff a prisoner who had been taken in execution at the plaintiff's suit, and whom the plaintiff had discharged upon procuring the bond as security for his debt, the Court held that the part of the condition which was to render a prisoner in execution who had been once discharged was legally impossible and void, and therefore, as the other part had not been performed, the bond was forfeited (e). So, if an award directs one of two things to be done in the alternative, and either of the two is impossible or uncertain, it is incumbent on the party to perform the other of them (f).

Where one of two alternative promises becomes subse- Subsequent

(a) Wilkinson v. Lloyd, 7 Q. B. 27; and see Stray v. Russell, 1 E. & E. 888, 916; 28 L. J. Q. B. 279; 29 ib. 115.

(b) Grey v. Hesketh, Ambler, 268. (c) Stevens v. Webb, 7 C. & P. 60.

(d) Da Costa v. Davis, 1 B. & P. 242.

(e) Da Costa v. Davis, 1 B. & P. 242.

(f) Simmonds v. Swaine, 1 Taunt. 549.

impossi

tive pro

mises.

bility of one quently impossible, the other may or may not remain bindof alterna- ing according to the construction of the contract as to the intention of the parties. It has been attempted to find a general rule to meet such cases, but without a satisfactory result (a); and in the case of Barkworth v. Young (b), Kindersley, V.C., after consideration of the authorities, said :—“It appears to me that it is improper to lay down any universal proposition either way; but that the principle to be applied. in each case is, that it must depend on the intention of the parties to the bond or covenant or agreement, such intention to be collected from the nature and circumstances of the transaction and the terms of the instrument; and this, at least, I think, will hardly admit of contradiction, that if the Court is satisfied that the clear intention of the parties was, that one of them should do a certain thing, but he is allowed at his option to do it in one or other of two modes, and one of these modes became impossible by the act of God, he is still bound to perform it in the other mode."

In Laughter's case (c) a bond was conditioned that if a husband should aliene his wife's land, he would either convey to her land of equal value, or leave her by will an equal sum of money; the husband aliened the lands and afterwards the wife died, leaving the husband surviving, so that the alternative of leaving the money by will became impossible; it was held that the condition was not broken: according to the report of Coke the reason of the judgment was "that where a condition of a bond consists of two parts in the disjunctive, and both are possible at the time of the bond made, and afterwards one of them becomes impossible by the act of God, the obligor is not bound to perform the other part." So, the plaintiff, having arrested a debtor at his suit, at request of the defendant released him from custody upon the defendant giving the plaintiff a bond, conditioned to pay the plaintiff £70 before the 25th December or to surrender the debtor before that day into custody in the said action; in an

(a) See Laughter's case, 5 Co. 21 b; Cro. Eliz. 398; Greningham v. Ewer, Cro. Eliz. 396; More v. Morecombe, Cro. Eliz. 864; Drummond v. Duke of Bolton, Sayer, 243; and the

cases collected in Jones v. How, 9 C. B. 1.

(b) 4 Drewry, 1, 25; 26 L. J. C. 153, 163.

(c) 5 Co. 21 b.