Same - Where Conditions Essential To Performance Do Not Exist

A fourth exception recognized in some cases is that performance of a contract will be excused where conditions essential to performance do not exist.96 An illustration of this exception is found in a recent well-considered case in the New York Court of Claims,97 in which it is said: "Where in the course of the "construction of a canal natural conditions of soil unexpectedly appear, which contingency the contract does not in express terms cover, and which render the performance of the contract as planned impossible, and make necessary substantial changes in the nature and cost of the contract, and substantially affect the work remaining under the contract, the law will read into the contract an implied condition when it was made that such a contingency will terminate the entire contract." This exception has not been recognized in the majority of jurisdictions, but the tendency of the courts is to be more liberal than formerly in relieving a party from his obligation under a contract where performance has been rendered impossible without fault on his part.98

Same - Performance Prevented By The Promisee

If performance of a promise is prevented by the promisee, there is no breach of contract by the promisor.99

Dec. 388; Lakeman v. Pollard, 43 Me. 463, 69 Am. Dec. 77; Green v. Gilbert, 21 Wis. 395; Parker v. Macomber, 17 R. I. 674, 24 Atl. 464, 16 L. R. A. 858. The right to recover except on full performance may be excluded by the express terms of the contract. Cutter v. Powell, 6 Term R. 320. See "Master and Servant," Dec. Dig. (Key-No.) % 28; Cent. Dig. § 21.

95 Mendenhall v. Davis, 52 Wash. 169, 100 Pac. 336, 21 L. R. A. (N. S.) 914, 17 Ann. Cas. 179. See "Contracts," Dec. Dig. (Key-No.) § 311; Cent. Dig. §§ 1448-1456; "Master and Servant," Dec. Dig. (Key-No.) § 28; Cent. Dig. § 27.

96 Buffalo, etc., Land Co. v. Bellevue Land, etc., Co., 165 N. Y. 247, 59 N. E. 5, 51 L. R. A. 951; Kinzer Construction Co. v. State (Ct. Cl.) 125 N. Y. Supp. 46; Article by Frederick C. Woodward, 1 Col. Law Rev. 529; 15 Harv. Law Rev. 63, 418. And see Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215. See "Contracts," Dec. Dig. (Key-No.) § 309; Cent. Dig. §§

97 Kinzer Construction Co. v. State (Ct. Cl.) 125 N. Y. Supp. 46. See "Contracts," Dec. Dig. (Key-No.) § 309; Cent. Dig. §§ 1444-1446.

98See authorities cited supra, note 96.

99 Black v. Woodrow, 39 Md. 194; Smith v. Alker, 102 X. Y. 87. 5 N. E. 791; ante, p. 586. See "Contracts," Dec. Dig. (Key-No.) §§ 300, 303; Cent. Dig. §§ 1374, 1430-1433.