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.
The fact that performance proves to be more expensive than was anticipated does not constitute impossibility so as to avoid the contract.1 So the fact that the contract has proved to be unprofitable .does not of itself amount to a discharge.2 Thus a contract to manufacutre and sell certain patented articles and to pay the patentee a royalty therefor, a certain amount being guaranteed to him, is not discharged by the fact that none of such articles have been sold, and that none can be sold except at a loss.3 So a contract between a steam railroad running to Coney Island and a street railroad whose motive power then was horses, and which could not then run to Coney Island in competition with the steam railroad, by which on consideration of the right to use the tracks of the steam railroad the street railroad is to run its cars to the other's depot, is not discharged by the fact that the street railroad subsequently adopts electricity as a motive power and is able to compete with the steam railroad.4 So a contract giving to A the right to maintain an outside stairway from his building over B's land is not discharged by the fact that such land since then has greatly increased in value.5 So a contract to procure a right of way excepting the right to maintain a drawbridge is not discharged by the fact that the railroad company is unable to obtain a charter for such draw-bridge, and that the entire road must therefore be abandoned. The party who has obtained the right of way is entitled to the compensation agreed upon.6 The fact that it proves to have been imprudent to enter into the contract does not operate as a discharge.7 Thus a contract to furnish good pasture for cattle and an abundant supply of fresh water is not discharged because imprudent.8 So if A agrees to sell to B machines to cut wire nails, A is not discharged from such contract because he finds that the machines made by him for that purpose, which he had expected to deliver in performance of the contract, would not make nails rapidly enough to be profitable, and that such defect cannot be remedied. He can perform the contract by delivering machines of another make.9 So subsequent facts which make performance less profitable than was anticipated do not operate as a discharge.10 Thus a contract to furnish a book for publication by a corporation is not discharged by the fact that public disgrace has attached to the name of the former president and manager of the corporation, whose name the corporation bears.11
8 Middlesex Water Co. v. Whiting Co., 64 N. J. L. 240; 81 Am. St. Rep. 467; 49 L. R. A. 572; 45 Atl. 692.
9 Newport News, etc., Co. v. Brick Co., 109 Ky. 408; 59 S. W. 332.
10 Newport News, etc., Co. v. Brick Co., 109 Ky. 408; 59 S. W. 332.
11 Banewur v. Levenson, 171 Mass. 1; 50 N. E. 10.
1 Cornell v. Rodabaugh, 117 la.
287; 94 Am. St. Rep. 298; 90 N. W. 599.
2 Bates Machine Co. v. Iron Works, 113 Ky. 372; 68 S. W. 423; Stees v. Leonard, 20 Minn. 494; Leavitt v. Dover, 67 N. H. 94; 6\ Am. St. Rep. 640; 32 Atl. 156; Prospect, etc., R. R. v. R. R., 144 N. Y. 152; 26 L. R. A. 61; 39 N. E. 17; Hanthorn v. Quinn. 42 Or. 1; 69 Pac. 817; Pengra v. Wheeler, 24 Or. 532; 21 L. R. A. 726; 34 Pac. 354; Beecher v. Stein, 13» Pa St. 570; 21 Atl. 79.
3 Beecher v. Stein, 139 Pa. St. 570; 21 Atl. 79.
4 Prospect Park, etc., R. R. v. R. R., 144 N. Y. 152; 26 L. R. A. 610; 39 N. E. 17.
5 Joseph v. Wild, 146 Ind. 249; 45 N. E. 467.
6 Stanton v. Ry., 59 Conn. 272;
21 Am. St. Rep. 110; 22 Atl. 300.
7 Ware Cattle Co. v. Anderson, 107 la. 231; 77 N. W. 1026.
8 Ware Cattle Co. v. Anderson, 107 Ia. 231; 77 X. W. 1026.
9 Bates Machine Co. v. Tron Works, 113 Ky. 372; 68 S. W. 423.