This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If the contract is not to deliver specific property, but to deliver property of a given kind and quality, which may be performed by the vendor's delivering any property of that kind and quality which he may select, the destruction of property which the vendor had acquired with the intention of tendering it in performance of his contract does not discharge him from liability.1 Thus a contract to exchange flour for wheat is not dis-charged after the delivery of the wheat by the destruction of the mill with which the miller expected to grind the flour and in which the wheat was stored.2 The destruction of property which is not the subject-matter of the contract does not discharge the contract, even though the tacit assumption of its continued existence was a material inducement, and, it may be, the controlling inducement by which one party was led to make the contract. Thus a contract of employment of a traveling salesman3 or a clerk4 is not discharged by the destruction of his employer's place of business. So a contract by which A agrees with B, C and D, the owners of different boats, to solicit and secure freight for their boats for the following season for a fixed salary, to be paid one third by each of the owners, is not discharged as to B by the destruction of his boat.5 So a contract to deliver iron-work is not discharged by the accidental burning of vendor's mill at which he had expected to manufacture such iron-work.6 So a contract employing a teacher is not discharged by the destruction of the school-house in which it was expected that the school would be kept.7 So a contract to furnish electricity "for the purpose of operating his machinery," "in his business as a miller," is not discharged by the destruction of the mill in which it was expected that the electricitv would be used.8
1 Hallett v. Parker, 68 N. H. 59S; 39 Atl. 433.
2 Chapman v. Beltz, 48 W. Va. 1;
35 S. E. 1013.
1 Anderson v. May, 50 Minn. 280;
36 Am. St. Rep. 642; 17 L. R. A. 555; 52 N. W. 530.
2 Martin v. Mill Co.. 40 Mo. App. 23.
3 Turner v. Goldsmith (1891), 1 Q. B. 544.
4 Madden v. Jacobs, 52 La. Ann. 2107; 50 L. R. A. 827; 28 So. 225.
5Nicol v. Fitch, 115 Mich. 15; 69 Am. St. Rep. 542; 72 N. W. 988.