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 existence and fact of breach are not in any way dependent upon the intention or wish of the party in default to violate the contract, or upon the amount of care and faith used by the contractor,1 whether the breach is treated as a ground of discharge2 or as giving a right of action for damages.3 So it is a breach, though not a wilful breach, for one under contract for the season to quit because a strike is ordered, and he is a union man and the strikers threaten persona] violence.4 So the fact that the breach is due to the failure or inability of third persons with whom the party in default has made contracts to enable him to perform his contract does not excuse such breach.5 Thus default in a building contract on the part of the contractor is not excused because due to the default6 or inability to perform,7 on the part of a sub-contractor or material man. Still less is the default of a sub-contractor, material man or employe a discharge available by the chief contractor where he has not in good faith endeavored to perform his contract with them so as to induce performance on their part,8 as where he fails to return when he agrees, and the wages of his employes are in arrears and their supplies are not furnished.9 So a party to a contract binding him to be "responsible for any and all wrong use of said electrotypes " is liable for use of them, in violation of the contract by one to whom he has sold his interest in such business.10 A contract to replace defective parts of a machine11 is broken where the performance is prevented by reason of a strike. The question whether the breach was wilful or not is often, however, important in determining whether the party in default may recover a reasonable compensation for work done by him under the contract.12 To be distinguished from cases referred to in this section are cases where one party in effect only contracts to arrange with third persons to complete the performance for the benefit of the adversary party. Of such nature are the contracts of carriers, who are to carry over their own line and deliver to a connecting carrier. On doing this, they are not liable for any default of the connecting carrier.13 So, a vendor was to ship "within thirty days by sail or steam at seller's option." It was held that he had performed by delivering in good faith to a vessel bound to clear in snch time, though for lack of a full cargo it did not in fact do so.14 On the other hand, the fact that the transaction has resulted in loss to the party seeking relief does not establish the fact of breach.15 Thus A agreed to raft lumber for X, and A employed B to do the work under A's orders. B performed according to A's orders. The work was not completed in time to perform A's contract with X, and X recovered a judgment against A for breach. These facts gave A no right of action against B.16
12 Barsby v. Warren, 47 Xeb. 275; 66 X. W. 409.
1 See Sec. 1448 et seq.
1 Jones v. Marlborough, 70 Conn. .583; 40 Atl. 460; Cornell v. Roda-baugh, 117 Ta. 287; 94 Am. St. Rep. 298; 90 N. W. 599; Vicksburg Water Supply Co. v. Gorman, 70 Miss. 360; 11 So. 680.
2 Bacon v. Green, 36 Fla. 325; 18 So. 870; Baltimore v. Schaub, 96 Md. 534; 54 Atl. 106.
3 Walsh v. Fisher. 102 Wis. 172; 72 Am. St. Rep. 865; 43 L. R. A. 810; 78 X. W. 437.
4 Walsh v. Fisher. 102 Wis. 172; 72 Am. St. Rep. 865; 43 L. R. A. 810; 78 X. W. 437.
5 Davis v. Ford, 81 Md. 333; 32 Atl. 280; Eeichenbach v. Sage, 13 Wash. 364; 52 Am. St. Eep. 51; 43 Pac. 354.
6 Davis v. Ford, 81 Md. 333; 32 Atl. 280. (In this case, however, the contractor made no bona fide effort to perform his contract with the material man.)
7 Eeichenbach v. Sage. 13 Wash. 364; 52 Am. St. Eep. 51; 43 Pac. 354. (Due to the severity of the weather.)
8 Davis v. Ford, 81 Md. 333; 32 Atl. 280.
9 Hanson v. Smith, 94 Fed. 960; 36 C. C. A. 581.
10 Meyer v. Estes, 164 Mass. 457;. 32 L. E. A. 283; 41 N. E. 683.
11 Puget Sound, etc., Works v. Clemmons, 32 Wash. 36; 72 Pac. 465.
12 See Sec. 1602. 13 See Sec. 359.