Same - Impossibility Created By Party

245. If a party to a contract, either before the time for performance or in the course of performance, makes performance, or further performance, by him impossible, the other party is discharged, and may sue at once for breach of contract.

If before the time for performance has arrived one of the parties, by his own act, makes it impossible to perform, the other is discharged, and may sue at once for a breach, as in case of renunciation.63 Where a lessee, for instance, had promised to assign to another, at any time within seven years from the date of the promise, all his interest in the lease, but before expiration of the seven years assigned his whole interest to another person, it was held that he could be sued at once for breach of contract. "The plaintiff," it was said in that case, "has a right to say to the defendant: 'You have placed yourself in a situation in which you cannot perform what you have promised. You promised to be ready during the period of seven years, and during that period I may at any time tender you the money and call for an assignment, and expect that you should keep yourself ready; but, if I now were to tender you the money, you would not be ready.' That is a breach of the contract." 64 The rule applies, where a person promises to execute a lease for a certain term, or a conveyance, and, before the time for executing arrives, executes a conveyance, or a lease covering that term, to another; 65 or where a person promises to sell specific goods on a certain day, and, before that day, sells them to another; 66 or where a person promises to marry, and, before the time for performance arrives, marries another than the promisee.87

60 Cort v. Railway Co., 17 Q. B. 127. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.

61 Kilgore v. Baptist Educational Ass'n, 90 Tex. 144, 37 S. W. 601; Hardeman-King Lumber Co. v. Hampton Bros. (Tex. Civ. App.) 130 S. W. 647; WIGENT v. MARKS, 130 Mich. 609, 90 N. W. 423, Throckmorton Cas. Contracts, 383. See "Contracts," Dec. Dig. (Key-No.) § 313; Cent. Dig. § 1279.

62 See cases cited supra, note 61.

63 Lovelock v. Franklyn, 8 Q. B. 371; Ford v. Tiley, 6 Barn. & C. 325; Bowdell v. Parsons, 10 East, 359; Crabtree v. Messersmith, 19 Iowa, 179; Wolf v. Marsh, 54 Cal. 228; Lovering v. Lovering, 13 N. H. 513; New-comb v. Brackett, 16 Mass. 161; Delamater v. Miller, 1 Cow. (N. Y.) 75, 13

The rule is the same where a party to a contract, by his voluntary act, in the course of performance, makes performance by him impossible.68 An illustration is afforded in a case in which the plaintiff had been engaged by the defendants, for a certain sum, to write a treatise for a serial published by them. The plaintiff incurred expense in preparing his work, and actually completed a part of it, but before it was delivered to the defendants they abandoned the publication of the serial. The plaintiff sued them on the special contract, and also on the quantum meruit for the work and labor expended by him on the treatise. It was argued that he could not recover upon the quantum meruit because, his part of the original contract being unperformed, the contract was not wholly at an end; but the court held that the abandonment of the publication put an end to the contract, and constituted a discharge.8*

Am. Dec. 512; Bolles v. Sachs, 37 Minn. 315, 33 N. W. 862; Cooley v. Moss, 123 Ga. 707, 51 S. E. 625; Hunter v. Wenatchee Land Co., 50 Wash. 438, 97 Pac, 494. See "Contracts," Dec. Dig. (Key-No.) § 814; Cent. Dig. § 1446.

64 Lovelock v. Franklyn. 8 Q. B. 371. See "Contracts," Dec. Dig. (Key-No.) § 314; Cent. Dig. § 11,1,6.

65 Ford v. Tiley, 6 Barn. & C. 325; Synge v. Synge (1894) 1 Q. B. 466; Newcomb v. Brackett, 16 Mass. 161; Bassett v. Bassett, 55 Me. 127. Contra, Webb v. Stephenson, 11 Wash. 342, 39 Pac. 952; Garberino v. Roberts, 109 Cal. 125, 41 Pac. 857. See "Contracts," Dec. Dig. (Key-No.) § 814; Cent. Dig. § 1446.

66 Bowdell v. Parsons, 10 East, 359; Hawley v. Keeler, 53 N. T. 114; Smith v. Jordan, 13 Minn. 264 (Gil. 246), 97 Am. Dec. 232; Crist v. Armour, 34 Barb. (N. Y.) 378; Easton v. Jones, 193 Pa. 147, 44 Atl. 264. See "Contracts," Dec. Dig. (Key-No.) § 814; Cent. Dig. § 1446.

67 Short v. Stone, 8 Q. B. 358; King v. Kersey, 2 Ind. 402; Sheahan v. Barry, 27 Mich. 217; Brown v. Odill, 104 Tenn. 250, 56 S. W. 840, 52 L. R. A. 660, 78 Am. St. Rep. 914. See "Contracts," Dec. Dig. (Key-No.) § 81.',; Cent. Dig. § 1446.

68 O'Neill v. Armstrong, [1895] 2 Q. B. 70; Woolner v. Hill, 93 N. Y. 576; Lovell v. Insurance Co., 1ll U. S. 264, 4 Sup. Ct. 390, 28 L. Ed. 423; Chicago v. Tilley, 103 U. S. 146, 26 L. Ed. 371; Hinckley v. Steel Co., 121 U. S. 264, 7 Sup. Ct 875, 30 L. Ed. 967; Western Union Telegraph Co. v. Semmes, 73 Md. 9, 20 Atl. 127. See "Contracts," Dec. Dig. (Key-No.) § 814; Cent. Dig. § 1446.