In regard to the correctness of the principle of law stated in the first subsection of the statute just quoted there can be no doubt where the statute has not been enacted as well as where it is in force. There are not many decisions exactly in point,98 but no question has ever been raised in regard to the result, though different reasons have been suggested for treating the sale as void. Sometimes the result is put upon the ground of impossibilty, sometimes upon the ground of mistake, and sometimes on the lack of mutual assent owing to the mistake. So far as the existence of a sale is concerned, that is, the actual transfer of title to property, of course there is absolute impossibility. The real question, however, is whether the buyer and seller are excused from all liability. Even though there is no sale the seller may be liable on an obligation of warranty or contract,99 and similarly the buyer might be liable on an obligation to pay the price. No such obligation, however, exists on either side. Though the essential elements of a contract - mutual assent and consideration - exist, the promise of each party is subject to an excuse of which it must be assumed without acthe rest of the election is without analogy in the English Act.
98 Hastie v. Couturier, 9 Ex. 102; a. c, on appeal, Couturier v. Hastie, 5 H. L. C. 673; Strickland v. Turner, 7 Ex. 208; Gibson v. Pelkie, 37 Mich. 380; Bates v. Smith, 83 Mich. 347, 47 N. W. 240. In the case first cited the parties purportea to make a sale by means of bills of lading of a cargo of corn. In fact at the time the bargain was made the corn, owing to fermentation, rendering its future preservation impossible, had already been sold at an intermediate port by the ship's captain. It was held that the bargain was void and the purchaser not bound for the price. In Strickland v. Turner, the parties purported to sell an annuity payable during the life of a third person. At the time the bargain was made the third person had already died, so that no annuity existed. It was held that the buyer could recover the price paid. Similarly in Gibson v. Pelkie, the bargain related to a judgment which did not exist. In Bates v. Smith, Long, J., said: "If it appears that the subject-matter of a contract was not, and could not have been in existence at the time of such contract, the contract itself is of no effect, and may be disregarded by either party." 99 See infra, Sec. 1034.