The courts will also hold a consideration unreal, and therefore no consideration at all, where it is impossible upon its face. As will presently be seen, practical impossibility, unknown to the parties when they entered into their contract, may avoid it on the ground of mistake;50 or impossibility of performance, arising subsequent to the making of the contract, may, under some circumstances, operate as a discharge;51 but we are here concerned with promises to do a thing so obviously impossible that the promise can form no real consideration.
The consideration may be either (1) impossible in law, or (2) physically impossible. Where, for instance, a debtor made a promise to the servant of his creditor in consideration of a promise by the servant to release him from the debt, it was held that there was no consideration for the debtor's promise, as the servant had no power to release the debt.52 So, also, an undertaking that another's land shall sell for a given sum on a certain day has been held insufficient to support a promise, on the ground that a person cannot compel the sale of another's property.53 In these cases the consideration is impossible in law. A promise to go from New York to London in a day would be physically impossible, and could form no consideration for a promise given in return.54
46 Williams v. Carrington, 1 Hilt (N. Y.) 515; Perkins v. Lockwood, 100 Mass. 249, 1 Am. Rep. 103; Brown v. Farnkam, 48 Minn. 317, 51 N. W. 377. See, also, White v. Kuntz, 107 N. Y. 518, 14 N. E. 423, 1 Am. St. Rep. 886. See "Compositions with Creditors," Dec. Dig. (Key-No.) § 8; Cent. Dig. § 8.
47 See Huffcutt, Anson, Cont 108, note 1; Harriman, Cont. § 126.
48 Anson, Cont. (8th Ed.) 90.
49 Fellows v. Stevens, 24 Wend. (N. Y.) 294; Murray "v. Snow, 37 Iowa, 410; Cheveront v. Textor, 53 Md. 295, 307; Falconbury v. Kendall, 76 Ind. 260; Robert v. Barnum, 80 Ky. 28; Pierce v. Jones, 8 Rich. (8 S. C.) 273, 28 Am. Rep. 288; Paddleford v. Thacher, 48 Vt 574; Boyd v. Hind, 1 Hurl. & N. 938; Slater v. Jones, L. R. 8 Exch. 193; Stewart v. Langston, 103 Ga. 290, 30 S. E. 35. See "Compositions with Creditors," Dec. Dig. (Key-No.) § 8; Cent. Dig. § 8.
50 Post, p. 251. 51 Post, p.590.
Impossibility, as used in this connection, does not mean anything more than a prima facie legal impossibility or physical impossibility "according to the state of knowledge of the day." 55 In the first case of legal impossibility mentioned above, the promisor might procure the release of the debt; and, in the second case, he might procure the owner of the land to sell it by the time specified. There is, however, a prima facie impossibility, and this is enough. So it may be that, in the future, means may be discovered by which one may be able to travel from New York to London in a day; but, according to the present state of knowledge, it is physically impossible. It was said in a New York case that if the promise be "within the range of possibility, however absurd or improbable the idea of the execution of it may be, it will be upheld; as where one covenants it shall rain to-morrow, or that the pope shall be at Westminster on a certain day. To bring the case within the rule of dispensation, it must appear that the thing to be done cannot by any means be accomplished; for if it is only improbable, or out of the power of the obligor, it is not in law deemed impossible." 56
52Harvey v. Gibbons, 2 Lev. 161. And see Ward v. Hollins, 14 Md. 158: Pierce v. Pierce, 17 Ind. App. 107, 46 N. B. 480. See "Contracts," Dec. Dig. (Key-No.) § 80; Cent. Dig. §§ 8S2-SS7, 395.
53 Stevens v. Coon, 1 Pin. (Wis.) 356. See "Contracts," Dec. Dig. (Key-No.) § 80; Cent. Dig. §§ SS2-SS7, 395.
54 See James v. Morgan, 1 Lev. Ill; Thornborow v. Whiteacre, 2 Ld. Raym. 1164; Bennett v. Morse, 6 Colo. App. 122, 39 Pac. 582. A covenant by an applicant for life insurance that he will not die by his own hand while insane does not create a contract which will defeat recovery on the policy where the insured takes his life while insane, since the covenant was one impossible to observe, and known to be so by both parties. Kelley v. Insurance Co. (C. C.) 109 Fed. 56. See "Contracts," Dec. Dig. (Key-No.) § 80; Cent. Dig. §§ 382-387, 395.
55 Per Brett, J., Clifford v. Watts, L. R. 5 C. P. 577, 588. See "Contracts," Dec. Dig. (Key-No.) § 80; Cent. Dig. §§ 382-387, 395.
56 Beebe v. Johnson, 19 Wend. (N. Y.) 500, 32 Am. Dec. 518, citing 3 Com. Dig. 93; 1 Rolle, Abr. 419. And see Watson v. Blossom, 50 Hun, 600, 4 N. Y. Supp. 489; Clifford v. Watts, L. R. 5 C. P. 588; The Harriman v. Emerick, 9 Wall. 161, 19 L. Ed. 629. See "Contracts," Dec. Dig. (Key-No.) § 80; Cent. Dig. §§ 8S2-387, 395.