In case of specialty. 3 & 4 Will. IV. c. 42. § 5. Of simple contract. By promise. 9 Geo. IV. c. 14. § 1. to bar the remedy, but to extinguish the right: such is the case as to realty under 3 & 4 Will. IV. c. 27: but in contract the remedy barred by 21 Jas. I. c. 16 may be revived. Where a specialty contract results in a money debt, the right of action may be revived for the statutory period of limitation, (1) by an acknowledgment of the debt in writing, signed by the party liable, or his agent; or (2) by part payment, or part satisfaction on account of any principal or interest due on such a specialty debt. Such a payment if made by the agent of the party liable will have the effect of reviving the claim.1 Where a simple contract has resulted in a money debt the right of action may also be revived by subsequent acknowledgment or promise, and this rule is affected by two statutes, Lord Tenterden's Act, which requires that the acknowledgment or promise, to be effectual, must be in 19 & 20 Vict. Writing; and the Mercantile Law Amendment Act, which provides that such a writing may be signed by the agent 19 & 20 Vict. of the party chargeable, duly authorized thereto, and is then as effective as though signed by the party himself.2 c. 97. c. 97. § 13. In re River Steamer Co., 6 Ch. 828. The sort of acknowledgment or promise which is requisite in order to revive a simple contract debt for another period of six years, is thus described by Mellish, L.J.: 'There must be one of three things to take the case out of the Statute (of Limitation). Either there must be an acknowledgment 1 The effect of an acknowledgment or promise in reviving a cause of action is confined to actions in assumpsit unless the statute gives a broader scope. Ib. p. 133 et sq. But a promise held out for a fraudulent purpose may work an estoppel. Armstrong v. Levan, 109 Pa. St. 177. 2 Generally in the United States an acknowledgment must be in writing signed by the party to be charged or his authorized agent. Stimson, Am. St. Law, § 4147; Wood, Limitation of Actions, p. 209. But these statutes do not generally prevent the proof of acknowledgment by part payment. Ib.; though the construction is otherwise in some States. Perry v. Ellis, 62 Miss. 711; Hale v. Wilson, 70 Ia. 311. *of the debt from which a promise to pay is implied; or, [*320] secondly, there must be an unconditional promise to pay the debt; or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed.' 6 This being the principle, its application in every case must turn on the construction of the words of the alleged promisor. And When the question is, what effect is to be given to particular words, little assistance can be derived from the effect given to other words in applying a in Skeet v. principle which is admitted.'1 Cleasby, B., Lindsay, 2 Ex. D. 817. ment. The debt, however, may be revived otherwise than by express acknowledgment or promise. A part payment, or By paypayment on account of the principal, or a payment of interest upon the debt will take the contract out of the statute.2 When this is so Lord Tenterden's Act provides that nothing therein contained shall alter, or take away, or lessen the effect of any payment of any principal or interest made by any person.' But the payment must be made with reference to the original debt, and in such a way as to amount to an acknowledgment of it. Payment to a third party is insufficient. Where the maker of a promissory note made a payment on account of the original payee after six years had expired, the note having, in the meantime, been indorsed to a third party, the payment was not an acknowledgment which revived the rights of Banking Co. the indorsee. 1 An order or bill of exchange drawn by the debtor in favor of the creditor is an acknowledgment of the debt. Manchester v. Braedner; 107 N. Y. 346, H. & W. 635. But an acknowledgment in an undelivered instrument is insufficient. Allen v. Collier, 70 Mo. 138, H. & W. 637. See for words held a sufficient acknowledgment, Schmidt v. Pfau, 114 Ill. 483; Blakeman v. Fonda, 41 Conn. 561; Weston v. Hodgkins, 136 Mass. 326. 2 Blaskower v. Steel, 23 Ore. 106. Waters v. Tompkins, 2C. M. R. 728. Stamford v. Smith, Unreality of con CHAPTER IV. Impossibility of Performance. IMPOSSIBILITY of performance may appear on the face. of the contract, or may exist, unknown to the parties, at the time of making the contract, or may arise after the contract is made. It is with this last sort of impossibility that we have to do. Where there is obvious physical impossibility, or legal sideration. impossibility apparent upon the face of the promise, there is no contract, because such a promise is no real consideration for any promise given in respect of it. p. 80. Mistake. Strickland Impossibility which arises from the non-existence of the subject-matter of the contract avoids it. This may be based ante, p. 184. on mutual mistake, for the parties have contracted on an v. Turner, 7 Exch. 208, 15 M. & W. 233. L. R. 5 C. P. 577. 15 M. & W. 253. L. R. 5 C. P. 577. a There are two irreconcileable cases on this subject. In Hills v. Sughrue, Sughrue agreed with Hills by charter-party to take Sughrue's ship to the island of Ichaboe and there load a complete cargo of guano and return with it to England, being paid a high rate of freight. There was so little guano at Ichaboe that the performance of Sughrue's promise to load a complete cargo was impossible. Hills sued him for damages for failure to bring home a cargo, and was held to be entitled to recover: Impossibility of performance was held to be no answer to an absolute promise such as Sughrue had made. In Clifford v. Watts the parties were landlord and tenant. Clifford, the landlord, sued upon a covenant in the lease in which Watts undertook to dig from the premises not less than 1000 tons of potter's clay annually, paying a royalty of 2s. 6d. per ton. Watts pleaded that there never had been so much as 1000 tons of clay under the land. The court held that the plea furnished a good answer to the plaintiff's claim. 'Here,' said Brett, J., 'both parties might well have supposed that there was clay under the land. They agree on the assumption that it is there; and the covenant is applicable only if there be clay.' The cases are indistinguishable, and the conflict of judicial opinion would be perplexing if it were not that the Court of Common Pleas, in distinguishing Hills v. Sughrue from Clifford v. Watts, curiously misapprehended the point of the earlier case. It is clear that Willes, J. (p. 586, and Brett, J., p. 589), thought the action was brought by the shipowner against [*322] assumption, which turns out to be false, that there is something to contract about.1 Impossibility which arises subsequently to the forma (1) General tion of a contract does not, as a rule, excuse from perform- rule. ance.2 p. 278. quent I have spoken of what are termed 'conditions subsequent,' supra, or 'excepted risks,' and what was then said may serve to explain the rule now laid down. If the promisor make the performance of his promise conditional upon its continued Subsepossibility, the promisee takes the risk. If performance impossishould become impossible, the promisee must bear the loss. If the promisor makes his promise unconditionally, he takes the risk of being held liable even though performance should become impossible by circumstances beyond contract. his control. Paradine sued Jane for rent due upon a lease. Jane pleaded that a certain German prince, by name Prince Rupert, an alien born, enemy to the king and his kingdom, had invaded the realm with an hostile army of men; and with the same force did enter upon the defendant's possession, and him expelled, and held out of possession whereby he could not take the profits.' The plea then was in substance that the rent was not due, because the lessee had been deprived, by events beyond his control, of the profits from which the rent should have come. bility no excuse, unless a condition of the Paradine v. Jane, the charterer for not furnishing a cargo, whereas it was brought by the charterer against the owner for not loading a cargo which the owner, contrary to the ordinary practice in charter-parties, undertook to do (see dicta of Parke, B., 15 M. & W. 258-9). It seems that they unintentionally decided contrary to Hills v. Sughrue. By the Sale of Goods Act, § 5, a contract for the sale of specific goods is avoided if the goods have perished unknown to the seller at the time the contract is made. 1 Ante, p. 167, note; Brick Co. v. Pond, 38 Oh. St. 65. 2 Anderson v. May, 50 Minn. 280, H. & W. 639; Dermott v. Jones, 2 Wall. (U. S.) 1, H. & W. 641. But the court held that this was no excuse; and this difference was taken, that where the law creates a duty or charge and the party is disabled to perform it without any default in him, and hath no *remedy over, there the law will excuse him. As in the case of [*323] waste, if a house be destroyed by tempest, or by enemies, the lessee is excused. . . . But when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it.' Modern illustrations of the rule are to be found in the promise made by the charterer of a vessel to the ship-owner that the cargo shall be unloaded within a certain number See Appen- of days or payment made as 'demurrage.' dix. Thiis v. A cargo of timber was agreed to be made up into rafts by the master of the ship, and in that state removed by the charterer. Storms prevented the master from doing his part, but this default did not release the charterer from his promise to have the cargo unloaded within the time specified. So too a dock strike affecting the labour engaged both by ship-owner and charterer does not release the latter. He makes an absolute contract to have the [191]Q.B. cargo unloaded within a specified time. In such a case the merchant takes the risk.'a 1 Budgett v. 35. (2) Exceptions. Act of God. Castlegate Co. v. Demp- (C. A.) 854. To the general rule there is a group of exceptions, in which subsequent impossibility discharges the contract. These we must distinguish from cases in which the Act of God is said to discharge a contract; for this use of the a Compare this case with one in which the charter-party does not fix a definite time for unloading the cargo. In such cases a reasonable time is allowed, and the event of a dock strike would extend the time which should be regarded as reasonable. 1 But if the carrier is under no express absolute obligation a strike will excuse delay beyond what would otherwise be reasonable. Geismer v. Lake Shore &c. R., 102 N. Y. 563; Pittsburg &c. R. v. Hollowell, 65 Ind. 188. |