Sec 301

Should the parties to an agreement know that it is impossible for the object of the agreement to be performed, and should each know that the other knows this impossibility, then the agreement has no legal force, simply because the parties did not intend it to have such force.1 Nor is a different conclusion to be reached, should it appear that one of the parties did not know that the other party knew the thing to be impossible, making the agreement in order to overreach such other party. He cannot be permitted in such case to make anything out of his own fraud.2 Hence, specific performance will not be enforced when both parties know that the party contracting to convey has no title.3 And an agreement which both of the parties know is impossible, is void against either.4 - Under this head may be classed agreements to do things which are latently impossible, and which are apparently possible only because their terms are not fully examined. This is illustrated by an old case in which the bargain was that the defendant, for a fixed price, was to deliver to the plaintiff two grains of rye on the following Monday, four grains on the Monday after, and so on, doubling every succeeding Monday for a year. The defendant, to a suit on the contract, demurred, on the ground of impossibility. The court, however, seemed to think that this was not such an impossibility as to make the contract void; but the suit being compromised there was no final judgment, nor could the intimations of the court be practically carried out.5 A more rational conclusion was reached in a case where the bargain was to pay as price of a horse, barley, to be reckoned by giving a barley-corn for the first nail in his shoes, two for the second, and four for the third, which came to 500 quarters of barley for 32 nails. The bargain was treated by the court as a nullity, and a verdict directed for the value of the horse.1 And this is the right view. If there is no fraud in such bargains (and if there be fraud this by itself vacates), each party is supposed to know that which a little attention would enable him to know; and the bargain, being to do a thing known by both to be either impossible or preposterously unconscionable, cannot be regarded as binding.

When both parties know the thing is impossible, agreement is not binding.

1 See supra, sec 175.

2 See supra, sec 202 et seq.; Faulkner v. Lowe, 2 Exch. 595; Stevens v. Coon, 1 Pinney, Wis. 356.

3 Love v. Cobb, 63 N. C. 324; see Gilmer v. Gilmer, 42 Ala. 9.

4 Leake, 2d ed. 688; Hall v. Caze-nove, 4 East. 477; Duverger v. Fellows, 5 Bing. 248; 10 B. & C. 826; supra, sec 202.

5 Thornborongh v. Whitacre, 2 L. Ray. 1164; 6 Mod. 305.

Sec 302

A party who knows or ought to know of the nonexistence of a thing he contracts to deliver makes himself, however, liable to the other contracting party for non-delivery. Had he, the vendor, not made the promise, the purchaser might have gone elsewhere, and thus obtained what he needed; and the vendor, therefore, becomes liable for the non-performance.2 A party, for instance, agrees with another to obtain at the island of Ichaboe, a cargo of guano, to be delivered in England. There is not enough guano at Ichaboe to fill the order. The party contracting to deliver is nevertheless bound, as he ought to have known whether the guano could be found at Ichaboe in sufficient quantity.3 The same reasoning precludes a contractor undertaking to construct public works from recovering damages from the corporation employing him on the ground that there were some specifications in the contract which were impracticable, leading him in this way to incur fruitless expense. He should have acquainted himself with the nature of the contract before signing it.1 And it is declared to be "a general proposition of law, that when one man engages with another to supply him with a particular article or thing, in consideration of a pecuniary payment, he enters into an implied contract that the article or thing shall be reasonably fit for the purpose for which it is to be used, and to which it is to be applied." . . The only recognized exception is in " the case of some defect which is unseen and unknown, and undiscoverable, not only unknown to the contracting parties, but undiscoverable by the exercise of any reasonable skill and diligence, or by any ordinary and reasonable means of inquiry and examination."2 - According to Mommsen, if the promisee did not at the time know, and the promisor did know of the impossibility, then the promisee is entitled to be recompensed for the loss he was subjected to by the non-performance of the contract. This, however, presupposes non-negligent ignorance on his part of the impossibility. If his ignorance could have been avoided by ordinary care, then, if there was no fraud, he cannot complain. He took a contract for a thing which he ought to have known was impossible, and on this contract he cannot recover. "Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire."3 - The liability in such cases of the promisor (Schuldner) is based on the assumption, that on entering on such a contract he was guilty of either fraud (dolus), or such negligence as a good business man under such circumstances ought not to exhibit (culpa). The promisor, therefore, is only liable for damages in such cases when he knew at the time that performance was impossible, or when his ignorance in this respect was culpably negligent.

If promisor knows or ought to know of impossibility, it is no defence.

1 James v. Morgan, 1 Lev. 111; Hardwicke, L. C, Chesterfield v. Jans-sen, 2 Ves. Sen. 155; Leake, 2d ed. 692.

2 See Francis v. Cockrell, L. R. 5 Q. B. 503.

3 Hills v. Sughrue, 15 M. & W. 253. Mr. Pollock queries, "if this case would now be so decided. It seems," he adds, " to fall within the rule in Taylor v. Caldwell," supra, sec 300. But Hills v. Sughrue can be sustained on the ground that the party contracting to find guano ought to have known what he was about. I do not think that either this case, or the citations given by Mr. Pollock from the Roman law, sustain his position, that impossibility of this kind, i. e. extrinsic, " is no excuse for the failure to perform an unconditional contract, whether it exists at the date of the contract or arises from events which happen afterwards." The cases he proceeds to cite to this effect (after Hills v. Sughrue) are cases of casus to which the party negligently exposed himself. To this class belong cases in which a party who ought to take cognizance of a certain risk makes a contrast exposing himself to it. If he takes such risk, ready to reap its advantages if the calamity does not occur, he must bear the loss should it occur. Thus a builder who undertakes to build a house cannot set up as an excuse for non-performance that he found the soil unexpectedly soft and treacherous. Dermott v. Jones, 2 Wall. 1; Tompkins v. Dudley, 25 N. Y. 272.

1 Thorn v. Mayor of London, L. R. 9 Ex. 163; 10 Ex. 112; aff. L. R. 1 App. Cas. (H. of L.) 120; and see infra, sec 311.

2 Kelly, C. B., Francis v. Cockrell, L. R. 5 Q. B. 503; citing Readhead v.

R. R., L. R. 2 Q. B. 412; L. R. 4 Q. B. 379. To same effect is Walden v. Finch, 70 Penn. St. 461. That selling for particular purpose implies fitness for such purpose, see supra, sec 221. 3 L. 203, D. de R. J. (50, 17).