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 party to a contract may make it impossible for the other party to perform the contract or may delay the performance of it. The party who thus makes performance impossible on the part of the other, does not thereby discharge himself from liability.1 Thus, if A sells to B property which is to meet the requirements of a certain test, B cannot prevent liability by making the performance of such test impossible.2 Thus, where A agreed to furnish air-propellers to remove the smoke from B's tempering-room, B to furnish the power from a shaft in such room, and the machine to be subject to thirty days' successful trial, it was held that the fact that the shaft broke, and that B declined to furnish a new shaft, prevented thirty days' successful trial, and left B liable to A for the contract price.3 So, though no test was provided for, A who furnishes piping to carry off shavings and dust from certain machinery and places an exhaust fan furnished by B, can recover although, owing to a defect in the fan, the result is not successful.4 A sold a horse to B for an agreed price, and B was to pay one hundred dollars more if on a speed trial within ninety days such horse trotted as fast as another specified horse. B declined to make such test, because the horses were not in proper condition for the test within ninety days, and he did not allow such test to be made afterwards. It was held, that on proof of the fact that the horse sold was as fast as the other, A could recover the extra one hundred dollars.5 A floating dock, which is to be tested by means of a suitable vessel furnished by the goveminent within two months after the dock is completed, need not be tested if the government does not furnish a suitable vessel for such test, and the builder may recover the contract price to become due when such test was made, without making such test.6 A sold a heating plant to B under a contract by which A was to have a year to remedy any defects. Before the expiration of the year B removed the plant. It was held that A could recover the entire contract price.7 If the vendee agrees to measure property in a certain way before payment is due, and then makes such measurement impossible, the vendor may recover upon proof of the quantity furnished.8 Thus A agreed to furnish to a city stone to be crushed, which after crushing was to be used to macadamize certain streets, and the stone was to be measured upon the streets when finished. A furnished such stone, and it was crushed; but the city did not place it upon the streets. The city was not thereby discharged from liability.9 So under a contract for removing tar which provides that A's suspension of work for ten days shall give to B the right to terminate the contract, A suspended work for nine days; on the tenth day A was ready to resume, but B had given bis employes a holiday and there was no one to do the weighing provided for by the contract. These facts were held not to justify B in terminating the contract.10 Demanding performance in an illegal manner is equivalent to making performance impossible.11 The party who makes performance impossible cannot recover damages from the adversary party for not performing.12 So under a contract to furnish support at the obligor's home, no recovery can be had if the obligee leaves without good cause and without demanding support elsewhere.13 On the other hand, if the obligor breaks up housekeeping and goes to live with a relative and cannot furnish a home, breach exists, even if the obligee is asked to remain until the crops are removed.14 To operate as a discharge it is not necessary that the party who makes performance by the other impossible, should take active steps thereto. It is sufficient if he omits to do something which he should do, and such omission causes the impossibility.15 A agreed to furnish certain materials to B for a building in which B was the main contractor, the material to be paid for after it was accepted by the supervising architect. A shipped a car-load of material, which was seized under a writ of attachment issued against B before it was placed in the building. It was held that A could recover, though such material was never accepted by the supervising architect.16 Thus omitting to secure a right of way which thereby falls into the hands of a competing railroad and makes the construction of the extension agreed upon impracticable, discharges one who has agreed to advance money for such extension.17 So a delay caused by plumbers, working under an independent contract with the owner of a building cannot authorize a deduction from the contract price, provided for in the contract on account of default of the contractor.18 Under a principle analogous to the doctrine of voluntary creation of impossibility of perform' ance, it has been held that if a beneficiary under an insurance policy kills the insured, he forfeits his rights under the insurance policy and it should be paid to the insured's estate.19 The assignee 'of the beneficiary's interest under the policy can claim no interest thereunder.20 So it has been held that a policy payable to insured's estate is forfeited where he is executed for murder under sentence of a court of competent jurisdiction.21 In order that the case may come within the principles discussed in this section, however, the conduct of the party who is said to prevent performance must be in excess of his legal rights. Employment by an owner of a non-union laborer, because of whom the contractor's workmen struck, does not amount to the owner's preventing the contractor from performing his contract.22 Furthermore it must be conduct which in legal effect interferes with performance by the adversary party. Profane and insulting language23 or threats of personal violence24 do not make performance impossible and cannot betreated as discharging the contract.
1 Blodgett v. Zinc Co., 120 Fed. 893; Great Falls v. Theis, 79 Fed. 943; Brewer v. McCain, 21 Colo. 382; 41 Pac. 822; Christopher, etc., Co. v. Yeager, 202 111. 486; 67 N. E. 166; Shirk v. Lingeman, 26 Ind. App. 630; 59 N. E. 941; Loftus v. Riley, 83 la. 503; 50 N. W. 17; Howard v. Mfg. Co., 162 N. Y. 347; 56 N. E. 986; Vanderhoof v. Shell, 42 Or. 578; 72 Pac. 126; Bishop v. Averill, 17 Wash.
209; 49 Pac. 237; 50 Pac. 1024.
2 Deyo v. Hammond, 102 Mich. 122; 25 L. R. A. 719; 60 N. W. 455; Howard v. Mfg. Co., 162 N. Y. 347; 56 N. E. 986.
3 Howard v. Mfg. Co., 162 N. Y. 347; 56 N. E. 986.
4 May Mantel Co. v. Blow-Pipe Co., 93 Ga. 778; 21 S. E. 142.
5 Deyo v. Hammond, 102 Mich. 122; 25 L. R. A. 719; 60 N. W. 455.
6 International, etc., Co. v. United States, 60 Fed. 523.
7 Lehmann v. Webster, 209 111. 264; 70 N. E. 600; affirming, 110 111. App. 298.
8 Harper v. Sterling, 84 111. App. 62.
9 Harper v. Sterling, 84 111. App. 62.
10 Brown v. Monumental Co., - Md. - ; 55 Atl. 391.
12 District of Columbia v. Iron Works, 181 U. S. 453; Chicago, etc., Ry. v. Hoyt. 149 U. S. 1 ; Antonelle v. Lumber Co.. 140 Cal. 300; 73 Pac. 966; Day v. Jeffords, 102 Ga. 714; 29 S. E. 591.
13 Adams v. Cook, 200 Pa. St. 258; 49 Atl. 954.
14 Milks v. Milks, 129 Mich. 164; 88 N. W. 402.
15 United States v. Jack, 124 Mich. 210; 82 N. W. 1049.
16 United States v. Jack, 124 Mich. 210; 82 N. W. 1049. For a case presenting similar facts see Leek Milling Co. v. Langford, 81 Miss. 728; 33 So. 492.
17 Porter v. Blair, 83 Fed. 104.
18 Crouch v. Gutmann, 134 N. Y. 45; 30 Am. St. Hep. 608; 31 N. E. 271.
19 Schmidt v. Life Association, 112 la. 41; 84 Am. St. Rep. 323; 51 L. R. A. 141; 83 N. W. 800.
20 Schmidt v. Life Association. 112 la. 41; 84 Am. St. Rep. 323: 51 L. R. A. 141; 83 N. W. 800.