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.
One of the parties to a contract may voluntarily disable himself from performing, so that performance on his part becomes impossible. Such conduct amounts to breach of the contract.1 If A agrees to mine coal on B's land, paying a specified royalty to B on the amount mined, such royalty not to be less than a specified minimum sum annually, A impliedly agrees to do nothing to incapacitate himself from mining all the coal on B's land that can profitably be mined. Accordingly if A mines a lower vein first, so that it is impossible for A to mine the upper veins thereafter, this is a breach. A is liable in actual damages, and k has been held that he cannot escape liability by paying the minimum royalty.2 So if A agrees with B to operate a certain mill for five years, A's sale of such mill to X, without requiring X to perforin such agreement is a breach.3 If an insurance company terminates its business and transfers its policies and assets to another company, the insured may treat this as a breach and recover whatever he may be entitled to out of the assets.4 In case of voluntary disability to perform the adversary party may treat such act as discharging him from further liability under the contract.5 Thus A agreed to pay to B seventy-five dollars in goods. A made an assignment for the benefit of creditors. This was held to disable A from performance, so that B, without demand, could set off such amount against a debt clue from him to A.6 Some courts hold that he may treat the eon-tract as in force, if a continuing contract, and sue for installments as they become due thereunder. Thus under a contract whereby A agrees to pay B royalties, if A makes it impossible for himself to perform, B may treat such act as an entire breach and sue for damages; or he may treat the contract as in force and sue for the installments as they become due.7 He may bring action at once, even if the time for performance has not jet arrived.8 The party who has made performance impossible cannot discharge himself thereby from liability under the contract.9 Thus one who agrees to buy all the ice necessary for his business cannot discharge his own liability by selling his business.10 So one who agrees to buy all the coal necessary for three specified steamships for one year, cannot discharge his liability by selling one of these steamships.11 If A agrees to devise,12 or to sell,13 or to deliver as payment of a debt,14 specific property to B, A's sale of such property is a breach of such contract, and gives to B the right to sue upon such contract before the time fixed for performance. So A's contract to employ B to sell specific realty,15 is discharged by A's conveying such realty to another. It has been held, however, that if A, after agreeing to convey specific realty to B, conveys it to X who knows of B's contract, B can enforce the contract as against X and therefore cannot treat such sale as a discharge.16 This is especially true if the conveyance to X is expressly made subject to B's rights.17 If, however, A has agreed to sell to B property which is not specific, but is to correspond to a given description, and thereafter A without B's assent selects certain articles intending to deliver them in performance of such contract, his selection of such articles is not conclusive and his subsequent sale of them is therefore not a discharge.18
19 Pierce v. E. R., 173 U. S. 1; Howard v. Daly, 61 N. Y. 362; 19 Am Rep. 285; East Tennessee, etc., R. R. v. Staub, 7 Lea (Tenn.) 397; Stubbe v. Waldeck, 78 Wis. 437; 47 N. W. 833. For other cases on this point see Sec. 1353, 1585.
20 Dugan v. Anderson, 36 Md. 567; 11 Am. Rep. 509.
21 Howard v. Daly, 61 N. Y. 362; 19 Am. Rep. 285.
22 Thompson v. Brown, 106 la. 367; 76 N. W. 819.
23 Houghton v. Callahan, 3 Wash. 158; 28 Pac. 377.
24 Newton v. Van Dusen, 47 Minn. 437; 50 N. W. 820.
25 McGregor v. Ross, 96 Mich. 103; 55 N. W. 658.
26 Central Appalachian Co. v. Buchanan, 73 Fed. 1006; Grunwald v. Hahn, 176 Pa. St. 37; 34 Atl. 972.
27 Cochran v. Yoho, 34 Wash. 238; 75 Pac. 815.
1 Planehe v. Colburn, 8 Bing. 14 ; Palmer v. Temple, 9 Ad. & El. 508; Lovell v. Ins. Co., 1ll U. S. 264; Eames v. Savage, 14 Mass. 425; Stark v. Duvall, 7 Okla. 213; 54 Pac. 453.
2 Genet v. Canal Co., 136 N. Y. 593; 19 L. R. A. 127; 32 N. E. 1078.
3 Hudson v. Archer, 9 S. D. 240; 68 N. W. 541.
4 Lovell v. Ins. Co., Ill U. S. 264.
5 Day v. Jeffords, 102 Ga. 714; 29 S. W. 591.
6 Laybourn v. Seymour, 53 Minn. 105; 39 Am. St. Rep. 579; 54 N. W. 941.
7 Keck v. Bieber, 148 Pa. St. 645; 33 Am. St. Rep. 846; 24 Atl. 170.
8 Stark v. Duvall, 7 Okla. 213; 54 Pac. 453; Keck v. Bieber, 148 Pa. St. 645; 33 Am. St. Rep. 846; 24 Atl. 170.
9 Hickey v. O'Brien, 123 Mich. 611; 81 Am. St. Rep. 527; 49 L. R. A. 594; 82 N. W. 241.
10 Hiekey v. O'Brien, 123 Mich. 611; 81 Am. St. Rep. 227; 49 L. R.
A. 594; 82 N. W. 241.
11 Wells v. Alexandre, 130 N. Y.
642; 15 L. R. A. 218; 29 N. E. 142.
12Synge v. Synge (1894), 1 Q.
13 Weaver v. Aitcheson, 65 Mich. 285; 32 N. W. 436
14 Reynolds v. Trust Co., 83 Fed. 593; 27 C. C. A. 620.
15 Brooks v. Miller, 103 Ga. 712; 30 S. E. 630.
16 Kreibich v. Martz, 119 Mich. 343; 78 N. W. 124.
17 Fields v. Clayton, 117 Ala. 538; 67 Am. St. Rep. 189; 23 So. 530.
18 Stanford v. McGill, 6 N. D. 536; 38 L. R. A. 760; 72 N. W. 938.