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 party prevented from performing further may recover for what he has done without performing fully.1 A sold a monument to B, upon which were to be inscribed four lines of verse to be furnished by B. It was held that if B refused to furnish the lines of verse, A could erect the monument without the verse and recover the contract price, less the cost of inscribing such lines of verse.2 A agreed to construct certain wood-work in B's building. Before it was completed the roof of the building fell, through the negligence of B's employes. A was allowed to recover for the part of the work that had been done, although it was injured by such fall.3 One who agrees to support another at the house of such other, is discharged from further liability and permitted to sue in assumpsit for work done upon demand of the owner of the house that the other leave the premises.4 Tbe party preventing performance cannot recover from the other for damages for non-performance thus caused. Thus no deduction can be made from the contract price of a building for defects due to the action of the architect employed by the owner.5 No recovery for damages can be had for delay in delivering a chattel sold if the delay is due to the fault of the vendee.6 A agreed to deliver hay to the United States, and it was an implied term of the contract that he was to cut the hay in the Yellowstone Valley, where the only available grass was growing. The United States then had this grass cut by others. This was held to discharge A from liability from furnishing hay.7 A agreed to construct a boat for B. Two months before time at which such boat was to be completed, A became insolvent, made a general assignment for the benefit of creditors, and B took possession of the boat. This was held to discharge A from liability for not completing the boat within the time specified.8 An agreement to pay A, who was acting as superintendent of a department of a corporation, an additional salary for the last term of his services if his contract is not renewed, is discharged when such corporation sells its business to another corporation, in which sale A takes an active part.9 While the party prevented from further performance can recover damages, he cannot recover the full contract price as if he had performed in full.10 He may treat the contract as broken and sue for damages. The doctrine of impossibility of performance applies where one party makes performance by the other not actually impossible but highly dangerous. A agreed to take down trusses from an exposition building at five dollars per truss. While A was working upon such contract the owners of the building removed the shafting, rafters and bracing to such an extent that part of the building fell, and two of A's employes were killed. It was held that A could abandon the contract, consider it as discharged, and recover the profit that he would have earned had be completed his contract.11 If the contract could not be performed in any event, conduct by one party which would have made performance impossible had it been possible before, does not amount to an actionable breach, as no damage exists. Thus A agreed with B to pay a certain sum if B should collect a claim of A's against X in full. If such claim was in fact uncollectible, A's assignment of such claim did not amount to a breach.12
17 Vanderhoof v. Shell, 42 Or. 578; 72 Pac. 126.
1 North v. Mallory, 94 Md. 305; 51 Atl. 89; Parker v. Macomber, 17 R. I. 674; 16 L. R. A. 858; 24 Atl. 464; Hildebrand v. Fine-Art Co., 109 Wis. 171; 53 L. R. A. 826; 85 N. W. 268.
2 Eastern Granite Co. v. Heim, 89 la. 698; 57 N. W. 437.
3 Teakle v. Moore, 131 Mich. 427; 91 N. W. 636.
4 Parker v. Macomber. 17 R. T. 674; 16 L. R. A. 858; 24 Atl. 464.
5 White v. School District, 159 Pa. St. 201; 28 Atl. 136.
6 District of Columbia v. Iron Works. 181 U. S. 453; affirming 15 App. D. C. 198: Maher v. Lumber Co., 86 Wis. 530; 57 X. W. 357.
7 United States v. Peck, 102 U. S. 64.
8 Vandegrift v. Engineering Co., 161 N. Y. 435; 48 L. H. A. 685; 55 N. E. 941.
9 Woodbridge v. Pratt, etc., Co., 69 Conn. 304; 37 Atl. 688. After such sale was made A refused to consent to a novation of his contract offered by the new corporation.
10 Kentucky Union Lumber Co. v. Martin (Ky.), 49 S. W. 191.
11 Lynch v. Sellars, 41 La. Ann. 375; 5 L. R. A. 682; 6 So. 561.