254. Impossibility of performance arising subsequent to the formation of a contract does not discharge the promisor, even though he was not in fault, except -

EXCEPTIONS - (a) Where the impossibility is created by law.

(b) Where the subject-matter is destroyed, the rule being that, where the continued existence of a specific thing is essential to the performance of a contract, its destruction, from no default of either party, operates as a discharge.

(c) In case of incapacity for personal services, the rule being that a contract which has for its object the rendering of personal services is discharged by the death or incapacitating illness of the promisor.68

(d) In some jurisdictions, where conditions essential to performance do not exist, the promisor is relieved from his obligation to perform, but this exception has not been recognized in most jurisdictions.

Obvious physical impossibility, or legal impossibility, which is apparent upon the face of the promise, avoids the contract. There is no question of discharge, for there has in fact never been a contract. The reason for this is, as we have seen, that the promise is an unreal consideration for any promise given in return.69

66 Harmon v. Bird, 22 Wend. (N. Y.) 113. See "Contracts;' Dec. Dig. (Key-No.) §§ 83-86; Cent. Dig. §§ 388-402.

67 Giles v. Edwards, 7 T. R. 181; Claflin v. Godfrey, 21 Pick. (Mass.) 1; Steele v. Hobbs, 16 I11. 59; Darst v. Brockway, 11 Ohio, 462; Foss v. Ricb-ardson, 15 Gray (Mass.) 303; Chapman v. City of Brooklyn, 40 N. Y. 372; Leach v. Tilton, 40 N. H. 473; Richter v. Stock Co., 129 Cal. 367, 62 Pac. 39. And see cases cited supra, notes 51-53. The obligation to repay is quasi contractual. See post, p. 640. See "Contracts" Dec. Dig. (Key-No.) § 85; Cent. Dig. §§ 899-401.

68 Anson, Cont (4tb Ed.) 320-325. 69 Ante, p. 166.

Again, impossibility which arises from the nonexistence of the subject-matter of the contract avoids it.70 Here, also, there is no question of discharge from a contract. The question is one of avoidance of the contract, and relates to its formation.

We are here to deal with those cases in which a valid contract has been made, but has become impossible of performance because of facts and circumstances arising subsequent to its formation. The general rule is that such impossibility, even though it arises without any fault on the part of the promisor, does not discharge him from his liability under the contract. Of course he cannot perform his promise, as that has become impossible; but this is no excuse, and he may be held liable as for failure to perform As we have seen in speaking of conditions subsequent, the promisor may, by the terms of the contract, make the performance of his promise conditional upon its continued possibility, and if he does so the promisee takes the risk, and must bear the loss if performance becomes impossible. If, however, the promisor makes his promise unconditionally, it is his own lookout, and he takes the risk of being held liable, even though performance becomes impossible by reason of circumstances beyond his control.71 "Where the contract is to do a thing which is possible in itself,

70 Ante, p. 251.

71 Para dine v. Jane, Aleyn, 26; Ford v. Cotesworth, L. R. 4 Q. B. 127; Kearon v. Pearson, 7 Hurl. & N. 386; The Harriman, 9 Wall. 161, 19 L. Ed. 629; Jones v. U. S., 96 U. S. 24, 24 L. Ed. 644; Jacksonville, M., P. Ry. & Nav. Co. v. Hooper, 160 U. S. 514, 16 Sup. Ct. 379, 40 L. Ed. 515; Beebe v. Johnson, 19 Wend. (N. Y.) 500, 32 Am. Dec. 518; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Booth v. Mill Co., 60 N. Y. 487; Stees v. Leonard. 20 Minn. 494 (Gil. 448); Harrison v. Railway Co., 74 Mo. 364, 41 Am. Rep. 318; School Dist. No. 1 v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Adams v. Nichols, 19 Pick. (Mass.) 275, 31 Am. Dec. 137; Eugster v. West, 35 La. Ann. 119, 48 Am. Rep. 232; School Trustees v. Bennett, 27 N. J. Law, 513, 72 Am. Dec. 373; Summers v. Hibbard, Spencer, Bartlett & Co., 153 I11. 102, 38 N. E. 899, 46 Am. St. Rep. 872; Middlesex Water Co. v. Knappmann Whiting Co., 64 N. J. Law, 240, 45 Atl. 693, 49 L. R. A. 572, 81 Am. St. Rep. 467; Reichenbach v. Sage, 13 Wash. 364, 43 Pac. 354, 52 Am. St. Rep. 51; Rowe v. Town of Peabody, 207 Mass. 226, 93 N. E. 604; John Soley & Sons v. Jones, 208 Mass. 561, 95 N. E. 94; Gravel Switch, etc., Telephone Co. v. Lebanon, etc., Telephone Co., 139 Ky. 151, 129 S. W. 559. Where a person has contracted to build a house, he is neither excused from performance, nor entitled to recover for what he has done, by the fact that the house is destroyed by fire or other cause beyond his control, before its completion and acceptance by the owner. School Trustees v. Bennett, 27 N. J. Law, 513, 72 Am. Dec. 373; Lawiug v. Rintles, 97 N. C. 350, 2 S. E. 252; Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Fildew v. Besley, 42 Mich. 100, 3 N. W. 278, 36 Am. Rep. 433; Vogt v. Hecker, 118 Wis. 306, 95 N. W. 90. And see Bastrop, etc., Growers' Ass'n v. Cochran (Tex. Civ. App.) 138 S. W. 1188. See "Contracts," Dec. Dig. (Key-No.) § 809; Cent. Dig. §§ 1444-1446.

the performance is not excused by the occurrence of an inevitable accident or other contingency, although it was not foreseen by the party, nor was within his control." 72

In an old case, in which the plaintiff sued for rent due upon a lease, the defendant pleaded that a foreign prince had invaded the realm with a hostile army, and expelled defendant from the premises demised, whereby he could not take the profits out of which the rent should have come. 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 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." 73