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.
Where the doctrine of subsequent impossibility is recognized, such impossibility acts as a discharge of the contract, but is by no means the same thing as a performance of it. The promisor may invoke the subsequent impossibility as a defense in an action against him for breach of the contract,1 but he can not enforce the contract against the promisee as if he had performed it.2 If A employs B as an attorney upon a contingent fee, and B dies before such services are completed, B's death discharges the contract; and even if B's services resulted in A's collection of such claim, B's estate can collect only reasonable compensation for the services rendered and not the contract price.3 One who is pre-vented by sickness from rendering substantial performance of a contract for personal services can not recover the contract price to which he would have been entitled if he had performed.4 If A has agreed to pay B for his services and to bequeath an additional amount to him if he remains in A's service until A's death, B's executor can not recover such additional compensation provided for in the contract if B dies before A.5
7 Perine v. Standfield, 107 Mich. 553, 65 N. W. 541.
8 Leavitt v. Dover, 67 N. H. 94, 68 Am. St. Rep. 640, 32 Atl. 156.
9 Burnham v. Milwaukee, 100 Wis. 55, 75 N. W. 1014.
10 Leavitt v. Dover, 67 N. H. 94, 68 Am. St. Rep. 640, 32 Atl. 156.
1 United States. Moller v. Herring, 255 Fed. 670, 3 A. L. R. 624.
Connecticut Hanford v. Connecticut Fair Association, 92 Conn. 621, 103 Atl.
Indiana, Krause v. Board of Trustees, 162 Ind. 278, 102 Am. St. Rep. 203, 65 L.R. A. Ill, 70 N. E. 264.
Massachusetts. Browne v. Fairhall, 213 Mass. 290, 45 L. R. A. (N.S.) 349, 100 N. E. 556.
West Virginia. Bell v. Kanawha
Traction & Electric Co., - W. Va. -, 98 S. E. 885.
The party who wishes to set up the defense of impossibility must plead the facts which show that performance was discharged thereby. McCormick v. Jordan, 65 W. Va. 86, 63 S. E. 778.
2 England. The Jack Park, 4 C. Rob. 308; Melville v. De Wolfe, 4 El. & Bl. 844.
United States. Moller v. Herring, 255 Fed. 670, 3 A. L. R. 624.
California. Remy v. Olds, 88 Cal. 537, 21 L. R. A. 645, 26 Pac 355.
Connecticut. Leahy v. Cheney, 90 Conn. 611, L. R. A. 1917D, 809, 98 Atl. 132.
Oklahoma. Davidson v. Gaskill, 32 Okla. 40, 38 L. R. A. (N.S.) 692, 121 Pac. 649.
One of the parties to the contract can not, by reason of impossibility of performing the contract according to its terms, insist on a different method of performance in order that he may obtain substantially the same result that he would have obtained if the contract had been performed instead of being discharged.6
Under a contract to construct a tunnel, which proves impossible of performance on account of the nature of the ground, the contractors can not be required to construct a tunnel upon different plans and specifications.7 If a contract to build an annex to a building is discharged by the destruction of the building when the annex is almost completed, the owner can not, by reconstructing the original building, compel the contractor to rebuild such annex.8 The fact that the owner refuses to reconstruct a building which has been destroyed by fire, does not entitle a contractor, who has partially performed a contract to construct a part of such building, to treat such refusal as a breach.9 A sailor who has been imprisoned and who has been detained involuntarily, can not, in either case, recover wages for the time for which he was thus prevented from rendering services.10
3 Sargent v. McLeod, 209 N. Y. 360, 52. L. R. A. (N.S.) 380, 103 N. E. 164.
4 Davidson v. Gaskill, 32 Okla. 40, 38 L. R. A. (N.S.) 692, 121 Vac. 649.
5 Leahy v. Cheney, 00 Conn. 611, L. R. A. 1917D, 809, 98 Atl. 132.
6 Krause v. Board of School Trustees, 162 Ind. 278, 102 Am. St. Rep. 203, 65 L. R. A. Ill, 70 N. E. 264; Carroll v. Bowersock, 100 Kan. 270, L. R. A. 1917D, 1006, 164 Pac 143.
7 Milwaukee v. Shatter, 84 Fed. 106, 28 C.C.A. 286.
8 Krause v. Board of School Trustees, 162 Ind. 278, 102 Am. St. Rep. 203, 65 L. R A. Ill, 70 N. E. 264.
9 Carroll v. Bowersock, 100 Kan. 270, L. R. A. 1917D, 1006, 164 Pac. 143.
10 Melville v. De Wolfe, 4 EL & Bl. 844; The Jack Park, 4 C. Rob. 308.