Sec 325

It is elsewhere observed that casus is no defence when it is induced by the misconduct of the party setting it up as a ground of impossibility.2 The same remark may be made on the question of subjective incapacity. A party who by his misconduct makes himself incapable of performing a contract he has made, is liable in damages for such misconduct, even though the time for performance has not yet arrived.1 Hence, where a business was to be paid for by instalments, dependent upon the amount of the profits, it was held an implied undertaking that the buyer should carry on the business, and that by discontinuing it, so as to prevent an account, he became liable in damages for the price.2 The action in such case is not for specific performance, but for damages for non-performance; and, in such cases, it is not necessary for the plaintiff to demand performance.3 Nor in such case can the party disabling himself set up a technical default on the other side.4

Incapacity, when self-inflicted, no defence.

1 Supra, sec 248. In Allen v. Baker, 86 N. C. 91, the defendant failed to fulfil a contract of marriage upon the ground that he was afflicted with a venereal disease which rendered him unfit for the married state. Held, that he would be answerable in damages if the disease was contracted subsequently to the time of making the promise, or if before and he knew his infirmity was incurable; but if it was contracted prior to the promise and he had reason to believe it was temporary only, he would be excusable. The court said: "We cannot understand how one can be liable for not fulfilling a contract, when the very performance thereof would in itself amount to a great crime, not only against the individual, but against society itself. . . . The usual, and we may say legitimate, objects sought to be attained by such agreements to marry, are the comfort of association, the consortium vitœ, as it is called in the books; the gratification of the natural passions rendered lawful by the union of the parties; and the procreation of children. And if either party should thereafter become, by the act of God and without fault on his own part, unfit for such a relation and incapable of performing the duties incident thereto, then the law will excuse a non-compliance with the promise - the main part of the contract having become impossible of performance, the whole will be considered to be so." The court disapproved Hall v. Wright, which, however, seems to be supported by Boast v. Firth, L. R. 4 C. P. 8, where Montagu Smith, J., says: "In the case of a contract to marry, the man, though he may be in a bad state of health, may nevertheless perform his contract to marry the woman, and so give her the benefit of social position, so far as in his power, though he may be unable to fulfil all the obligations of the marriage state; and it rests with the woman to say whether she will enforce or renounce the contract.".

2 Supra, sec 312; infra, sec 603, 716, 747, 901.