high Per curiam intro- De Cres term Act of God' has been condemned by in Baily v. pigny, cus- L. R.4Q. B. at P. 185. But there are also forms of impossibility which are said Real exto excuse from performance because they are not within ceptions. the contract,' that is to say, that neither party can reasonably be supposed to have contemplated their occurrence, so that the promisor neither excepts them specifically, nor promises unconditionally in respect of them. With these we will deal seriatim. [*324] * (i) Legal impossibility arising from a change in the law of (i) Where our own country exonerates the promisor.1 there be change of the law. 180. Baily was lessee to De Crespigny, for a term of 89 years, L. R. 4 Q. B. of a plot of land: De Crespigny retained the adjoining land, and covenanted that neither he nor his assigns would, during the term, erect any but ornamental buildings on a certain paddock fronting the demised premises. A railway company, acting under parliamentary powers, took the paddock compulsorily, and built a station upon it. Baily sued De Crespigny upon the covenant: it was held that impossibility created by statute excused him from the observance of his covenant. The legislature, by compelling him to part with his land to a railway company, whom he could not bind by any stipulation, as he could an assignee chosen by himself, has created a new kind of assign, such as was not in the contemplation of the parties when the contract was entered into. To hold the defendant responsible for the acts of such an assignee is to make an entirely new contract for the parties.' 1 Cordes v. Miller, 39 Mich. 581, H. & W. 645; Hughes v. Wamsutta Mills, 11 Allen (Mass.), 201, H. & W. 647; People v. Globe Mut. Life Ins. Co., 91 N. Y. 174; Jamieson v. Indiana Natural Gas Co., 128 Ind. 555. ibid. p. 186. (ii) Destruction of subjectmatter. 3 B.& S. 826. L. R. 2 C. P. 651. 56 & 57 Vict. c. 71. § 7. (ii) Where the continued existence of a specific thing is essential to the performance of the contract, its destruction, from no default of either party, operates as a discharge.1 In the case of Taylor v. Caldwell the defendant agreed to let the plaintiff have the use of a music hall for the purpose of giving concerts upon certain days: before the days of performance arrived the music hall was destroyed by fire, and Taylor sued Caldwell for losses arising from the consequent breach of contract. The court held that, 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 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.' [*325] The same principle was applied in Appleby v. Myers. The plaintiffs undertook to erect certain machinery upon the defendant's premises and keep it in repair for two years. While the work was in progress the premises were wholly destroyed by fire. It was held that there was no absolute promise by Myers that his premises should continue in a fit state for Appleby's work, that the fire was a misfortune equally affecting both parties, and discharging the contract. By the Sale of Goods Act an agreement to sell specific goods is avoided if, before the risk has passed to the buyer, by fault of neither party the goods perish. 1 Dexter v. Norton, 47 N. Y. 62, H. & W. 649; Stewart v. Stone, 127 N. Y. 500; Walker v. Tucker, 70 Ill. 527; The Tornado, 108 U. S. 342; Huguenin v. Courtenay, 21 S. Car. 403. Where the contract contemplates work on a chattel or building the destruction of the latter discharges the contract, but recovery may be had for the work performed. Cleary v. Sohier, 120 Mass. 210; Butterfield v. Byron, 153 Mass. 517; Niblo v. Binsse, 3 Abb. App. Dec. (N. Y.) 375. If one contract against loss or destruction he is bound by the stipulations. Wilmington Transportation Co. v. O'Neil, 98 Calif. 1, H. & W. 654. pacity for (iii) A contract which has for its object the rendering of (iii) Incapersonal services is discharged by the death or incapacitat- personal ing illness of the promisor.1 service. Exch. 269. In Robinson v. Davison, an action was brought for L. R. 6 damage sustained by a breach of contract on the part of an eminent pianoforte player, who having promised to perform at a concert, was prevented from doing so by dangerous illness. The law governing the case was thus laid down by Bramwell, B.: — This is a contract to perform a service which no deputy could perform, and which in case of death could not be performed by the executors of the deceased; and I am of opinion that, by virtue of the terms of the original bargain, incapacity of body or mind in the performer, without default on his or her part, is an excuse for non-performance. Of course the parties might expressly contract that incapacity should not excuse, and thus preclude the condition of health from being annexed to their agreement. Here they have not done so; and as they have been silent on that point, the contract must, in my judgment, be taken to have been conditional and not absolute.' 1 Spalding v. Rosa, 71 N. Y. 40, H. & W. 655; Lacy v. Getman, 119 N. Y. 109; Johnson v. Walker, 155 Mass. 253; Allen v. Baker, 86 N. C. 91. An unforeseen peril, as the prevalence of cholera, may work a discharge of contract. Lakeman v. Pollard, 43 Me. 463. But see Dewey v. Union School District &c., 43 Mich. 480. ibid. p. 277. (1) Mer ger. General doctrine. See p. 317. Higgen's case, 6 Co. Rep. 45 b. Holmes v. 3 M. & G. CHAPTER V. Discharge of Contract by Operation of Law. THERE are rules of law which, operating upon certain sets of circumstances, will bring about the discharge of a contract, and these we will briefly consider. Merger. If a higher security be accepted in the place of a lower, the security which in the eye of the law is inferior in operative power, ipso facto, whatever may be the intention of the parties, merges and is extinguished in the higher. We have already seen an instance of this in the case of judgment recovered which extinguishes by merger the right of action arising from breach of contract. And, in like manner, if two parties to a simple contract embody its contents in a deed which they both execute, the simple contract is thereby discharged.1 The rules governing this process may be thus summarized: A (a) The two securities must be different in their legal operation, the one of a higher efficacy than the other. second security taken in addition to one similar in character will not affect its validity, unless there be discharge by substituted agreement. (B) The subject-matter of the two securities must be identical. (7) The parties must be the same. 1 Clifton v. Jackson Iron Co., 74 Mich. 183, H. & W. 659. (2) Altera [*327] *Alteration or loss of a written instrument. tion or loss of instrument. (i) Altera If a deed or contract in writing be altered by addition or erasure, it is discharged, subject to the following tion, rules: - 1 Pattinson v. L. R. 10 Ex. (a) The alteration must be made by a party to the Luckley, contract, or by a stranger while the document is in the 380. possession of a party to the contract and for his benefit. Alteration by accident or mistake occurring under such Johnson, circumstances as to negative the idea of intention will not invalidate the document. (B) The alteration must be made without the consent of the other party, else it would operate as a new agree ment. (7) The alteration must be made in a material part. What amounts to a material alteration must needs depend upon the character of the instrument, and it is possible for the character of an instrument to be affected by an alteration which does not touch the contractual rights set forth in it. In a Bank of England note the promise to pay made by the bank is not touched by an alteration in the number of the note; but the fact that a bank note is a part of the currency, and that the number placed on it is put to important uses by the bank and by the public for the detection of forgery and theft, causes an alteration in the number to be regarded as material and to invalidate the note.2 Wilkinson v. 8 B. & C. 425. 1 Wood v. Steele, 6 Wall. (U. S.) 80. It is a disputed point whether an action can be brought upon the original contract. It is generally held that if the alteration was made with a fraudulent intent no action will lie upon the original consideration. Smith v. Mace, 44 N. H. 553, H. & W. 660. But if it was made with an innocent intent a recovery may be had on the original contract. Clough v. Seay, 49 Iowa, 111, H. & W. 675; Owen v. Hall, 70 Md. 97; Savings Bank v. Shaffer, 9 Neb. 1. 2 Contra: Commonwealth v. Emigrant Bank, 98 Mass. 12; Birdsall v. Russell, 29 N. Y. 220; Elizabeth v. Force, 29 N. J. Eq. 587. |