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.
Mere difficulty of performance is not such impossibility as operates as discharge of a contract.1 Thus a provision in a policy of fire insurance requiring proof of loss in sixty days, and action to be brought in one year is not discharged by the fact that the loss occurred after the death of the insured; and that owing to a dispute about the probate of the will an executor was not appointed or proof of loss made for two years after the loss, since a special administrator might have been appointed to make proof of loss.2 So under a contract to fill an order for potatoes "immediately," delay is not excused by the fact that it took eight days to collect the potatoes.3 So the fact that the contractor is himself unable to perform the contract is not a discharge.4 Thus under a contract containing a proviso "unless providentially hindered," a mere breakage of machinery does not operate as a discharge.5 So a strike in vendor's factory does not discharge a contract to sell and deliver sheet-iron not stipulated to be of the vendor's manufacture.6 So the fact that the contractor is unable to complete his contract through lack of funds is no discharge. This is true even if the contractor is unable to raise funds upon stocks and bonds of the company for which he is working, which he has taken under his contract as his sole compensation, even if his inability to raise such funds is due to the failure of such company to keep its credit good by meeting its obligations.7 A agreed to furnish water to B. The pressure was not kept up, and B's building was lost by fire by reason thereof. A's excuse for failing to keep up pressure was that without his fault a water-pipe had broken under a river in which the tide ebbed and flowed, and that the pipe could be repaired only when the tide was out. These facts were not held to discharge A.8 The act of the law which merely makes the performance of the contract more difficult and expensive than had been anticipated does not operate as a discharge.9 Thus a foreign corporation which operates a railroad is not discharged by a subsequent change of statute forbidding a foreign corporation to operate a railroad without first becoming " a body corporate under the laws of this commonwealth," since such corporation can re-incorporate in such state.10 So a contract whereby A agrees to furnish a certain sum of money to compromise with B's creditors in consideration of B's transferring to A B's stock of goods, is not discharged because A is unable to obtain the dissolution of an attachment theretofore levied on such goods.*1
12 Vicksburg Water Supply Co. v. Gorman, 70 Miss. 360; 11 So. 680.
13 Pengra v. Wheeler, 24 Or. 532; 21 L. R. A. 726; 34 Pae. 354.
14 Buffalo, etc., Co. v. Improvement Co., 165 N. Y. 247; 51 L. R. A. 951; 59 N. E. 5.
15 Phoenix Bridge Co. v. United States, 38 Ct. Cl. 492.
1 Dewey v. School District, 43 Mich. 480; 38 Am. Pep. 206: 5 X. W. 646; Randolph v. Sanders, 22
Tex. Civ. App. 331; 54 S. W. 621 ; McKay v. Barnett, 21 Utah 239; 50 L. R. A. 371; 60 Pac. 1100.
2 School Town v. Gray, 10 Ind. App. 428; 37 N. E. 1059; Libby v. Douglas, 175 Mass. 128; 55 N. E. 808.
1 Blight v. Page, 3 Bos. & P. 295; Ford v. Cotesworth, L. R. 4 Q. B. 127; Brecknock v. Pritchard, 6 T. R. 750; United States v. Glea-son, 175 U. S. 588; Steele v. Buck,
61 111. 343: 14 Am. Rep. 60; Union v. Smith. 39 la. 9; 18 Am. Rep. 39; Boyle v. Canal Co., 22 Pick. (Mass.) 381; 33 Am. Dec. 749; Adams v. Nichols, 19 Pick. (Mass.) 275; 31 Am. Dec. 137; Anderson v. May. 50 Minn. 280; 36 Am. St. Rep. 642; 17 L. R. A. 555: 52 X. W. 530; Leavitt v. Dover. 67 X. H. 94; 68 Am. St. Rep. 640; 32 Atl. 156; Arnold v. Hagerman, 45 X. J. Eq. 186; 14 Am. St. Rep. 712; 17 Atl. 93; Prospect, etc.. R. R. v. R. R., 144 X. Y. 152; 26 L. R. A. 610: 39 X. E. 17; Beebe v. Johnson. 19 Wend. (N. Y.) 500: 32 Am. Rep. 518; Janes v. Scott, 59 Pa. St. 178; 98 Am. Dec. 328.
2 Matthews v. Ins. Co.. 154 N. Y. 449; 61 Am. St. Rep. 627; 39 L. R. A. 433; 4S X. E. 751.
3 Woods v. Miller, 55 la. 168; 39 Am. Rep. 170; 7 X. W. 484.
4 Day v. Jeffords, 102 Ga. 714; 29 S. E. 591; Summers v. Hib-bard, 153 111. 102; 46 Am. St. Rep. 872; 38 X. E. 899; Wood v. Boney (N. J. Eq.). 21 Atl. 574: Wheeler v. Connecticut, etc., Ins. Co.. 82 N. Y. 543; 37 Am. Rep. 594; Tompkins v. Dudley, 25 N. Y. 272: 82 Am. Dec. 349; Harmony v. Bingham, 12 N. Y. 99; 62 Am. Dec. 142.
5 Day v. Jeffords. 102 Ga. 714; 29 S. E. 591.
6 Summers v. Hibbard, 153 111. 102: 46 Am. St. Rep. 872; 38 N. E. 800.
7 Wood v. Boney (N. J. Eq.), 21 Atl. 574.