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.
An event which should have been foreseen by the promisor as a reasonable man cannot be relied upon by him as a subsequent impossibility amounting to a discharge. Thus the fact that floods in western streams cause a change in the channel cannot operate to discharge a contract for driving logs down to a slough which has once been filled up by a flood.1 In this case the contract was not rendered absolutely impossible, since at some expense the promisor could make use of another slough for the purpose of performing his contract. So the fact that the Ohio River is frozen in midwinter,2 or that the Yukon is too low for navigation by steamboat at certain stages of the year,3 are events which should have been foreseen, and cannot operate to discharge a contract for transportation. A contract to raise and deliver a certain quantity of beans, not to be raised on any specific tract of land, is not excused by an unexpected early frost which destroyed the crop which the promisor was raising with the intention of delivering it when grown in com-pletion of his contract.4 However, a contract to raise a certain kind of crop upon a specific tract of land has been held to be excused because of the failure of such crop due to a blight5 or to unusual climatic conditions.6 Such facts have been treated as a discharge even where the contract specified the minimum quantity which the promisor agreed to raise and deliver.7 One who agrees to complete a building,8 or grade a street,9 by a certain time, is not excused from liability for delay caused by bad weather, at least if such weather might have been anticipated as a possible contingency. So one who agrees to harvest a crop for another, to begin work not later than a given date, is liable for damages caused by high wind which might reasonably have been anticipated as possible, and which occurred during the week after the time fixed for commencing work in which the contractor delayed its commencement.10 So one who agrees to deliver certain logs by a given time if the logging season permits, is not excused by climatic conditions which are not uncommon, although more unfavorable to work than usual.11 A rise in a stream, threatening promisee's building, does not discharge a contract whereby promisor is to dig a ditch or canal, so that the promisee can stop the work without any liability for that which has been done already.12 A lessor agreed to repair a dam within ten days after the water has fallen to an average winter stage. The lessor was held liable for failure to begin repairs at such time, even though it was expensive to make such repairs then, and a subsequent rise of the stream made it impossible to repair at a later time.13 A bought land of an improvement company, which company, agreed to run cars to such land from the town every half hour "as such street railroads are usually run;" or, in default of such operation, to take back the land and pay certain damages to the vendee. A heavy snowfall prevented the running of such cars for some time, though the railroad company used snow plows, and made every effort to, clear the tracks. The cars were run as well and as regularly as cars on similar roads in the vicinity. This was held not to give the vendee the right to rescind the contract.14 An unexpected flood has been held not to excuse delay in completing a bridge.15
95 Cal. 353, 357; 30 Pac. 555; quoted in Sample v. Irrigation Co., 120 Cal. 222, 227; 61 Pac. 1085.
2 Sample v. Irrigation Co., 129 Cal. 222; 01 Pae. 1085.
3 Wliittemore v. Sills. 76 Mo. App. 248.
4 Wakefield v. Brown, 3S Minn.
361; 8 Am. St. Rep. 671: 37 N. W. 788.
5 Williams v. Pouns, 48 Tev. 141.
1 Mississippi River Logging Co. v. Robson. 60 Fed. 773; 16 C. C. A. 400; affirming, 61 Fed. 803.
2 Funster v. West. 35 La. Ava. 110; 4S Am. Rep. 232.
3 Smith v. Trading Co., 20 Wash. 580; 44 L. R. A. 557; 56 Pac. 372.
4 Anderson v. May, 50 Minn. 280; 36 Am. St. Rep. 642; 17 L. R. A. 555; 52 N. W. 530.
5 Howell v. Coupland, L. R. 9 Q. B. 462.
6 Ontario, etc., Association v. Packing Co.. 134 Cal. 21; 53 L. R. A. 681; 66 Pac. 28.
7 Ontario, etc., Association v. Packing Co.. 134 Cal. 21; 53 L. R. A. 681; 66 Pac. 28.
8 Cannon v. Hunt, 113 Ga. 501; 38 S. E. 983; Cochran v. Ry., 131 Mo. 607; 33 S. W. 177; Ward v. Building Co., 125 N. Y. 230; 26 N. E. 256; Reichenbach v. Sage, 13 Wash. 364; 52 Am. St. Rep. 51; 43 Pac. 354.
9 McQuiddy v. Brannock. 70 Mo. App. 535.
10 Holt Mfg. Co. v. Thornton, 136 Cal. 232; 68 Pac. 708.
11 Godkin v. Monahan, 83 Fed. 116; 27 C C. A. 410.