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.
Under a contract which by the intent of the parties requires for its performance the continued existence of a specific subject-matter, the destruction of such subject-matter is an event not within the meaning of the contract, unless one of the parties has assumed the risk of its destruction; and such destruction therefore operates as a discharge where neither party has assumed such risk.1 A contract for the use of a music hall in the future, is discharged by the destruction of such building.2 A contract to ship a cargo by a specified steamer is discharged where such steamer is so injured by the perils of the sea, without the fault of the contractors, as to make it impossible for her to arrive within the time agreed upon.3 A contract to mine coal in certain mines and to deliver it, is discharged by the destruction of the means of transporting such coal.4 A contract to construct an engine for a vessel which is then at sea, and to install such engine, is discharged by the loss of such vessel at sea before such work is completed.5 A lease of apartments, which gives no interest in the soil, and amounts only to a license to use such apartments, is discharged by the destruction of the building in which such apartments are situated.6 This rule must be distinguished from the rule applying to the lease giving an interest in the Soil and binding the lessee expressly to pay rent. Such lease is not discharged by the destruction of the building leased, in the absence of some specific provision therefor, or of some positive statute.7 A contract by which A, a planter, is to grind the sugar cane from his plantation at his own sugar-house and to have the syrup refined at B's refinery is discharged as to the remainder of the term of years for which it was to run by the destruction of the sugar-house.8 A contract for the service of a stallion provided that if the first service should prove fruitless there should be the privilege of return free during the season. The first service proved fruitless and return was demanded during the season. In the meantime the stallion had died. This was held to discharge the liability of the owner of the stallion.9 The owner of the stallion was not bound to return the service fee as for failure of consideration.10 A covenant in an insurance contract requiring a surrender of the policy in order to change the beneficiary is held to be discharged if the policy is stolen without the fault of the owner11 or the beneficiary refuses to return the former certificate.12
2 Tiffin Glass Co. v. Stoehr, 54 0. S. 157, 43 N. E. 279.
3 Ogdens, Limited v. Kelson , A. €. 109.
1 England. Taylor v. Caldwell, 3 Best & S. 826; Howell v. Coupland, 1 Q. B. Div. 258; Baily v. DeCrespigny, L R. 4 Q. B. (N.S.) 180.
Arkansas. Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622.
California. Ontario Deciduous Fruit Growers' Asso. v. Cutting Fruit Packing Co., 134 Cal. 21, 86 Am. St. Rep. 231, 53 L. R. A 681, 66 Pac. 28.
Illinois. Walker v. Tucker, 70 Ill. 527; Seigel v. Eaton, etc., Co., 165 Ill. 550, 46 N. E. 440; Martin Emerich Outfitting Co. v. Siegel, 237 Ill. 610, 20 L. R. A. (N.S.) 1114, 86 N. E. 1104.
Indiana. Krause v. Crothereville, 162 Ind. 278, 102 Am. St. Rep. 203, 1 Am. & Eng. Ann. Cas. 460, 65 L. R. A. Ill, 70 N. E. 264.
Kansas. Wells v. Sutphin, 64 Kan. 873, 68 Pac. 648; Carroll v. Bower-sock, 100 Kan. 270, L. R. A. 1917D, 1000, 164 Pac 143.
Maine. Knight v. Bean, 22 Me. 531.
Massachusetts. Eliot National Bank v. Beal, 141 Mass. 566, 6 N. E. 742; Gilbert, etc., Co. v. Butler, 146 Mass. 82, 15 N. E. 76; Browne v. Fairhall,
213 Mass. 290, 45 L. R. A. (N.S.) 349, 100 N. E. 556.
Mississippi. Ganong v. Brown, 88 Miss. 53, 117 Am. St. Rep. 791, 40 So. 556.
New Hampshire. Dame v. Wood, 75 N. H. 38, 70 Atl. 1081.
New Jersey. Perlee v. Jeflfcott, 89 N. J. L. 34, 97 Atl. 789.
New York. Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Stewart v. Stone, 127 N. Y. 500, 14 L. R. A. 215, 28 N. E. 595.
North Carolina. Pasquotank & North River Steamboat Co. v. Eastern Carolina Transportation Co., 166 N. Car. 582, 82 S. E. 956.
Oregon. Powell v. Ry., 12 Or. 488.
Rhode Island. Yerrington v. Greene, 7 R. I. 580, 84 Am. Dec. 578.
Washington. R. J. Mens Lumber Co. v. McNeeley, 58 Wash. 223, 28 L. R. A. (N.S.) 1007, 108 Pac. 621.
Wisconsin. Halsey v. Waukesha Springs Sanitarium, 125 Wis. 311, 110 Am. St. Rep. 838, 104 N. W. 94.
See also, Gottlieb v. Rinaldo, 78 Ark. 123, 6 L. R. A. (N.S.) 273, 03 S. W. 750; and Nutting v. Watson, 84 Neb. 464 25 L. R. A. (N.S.) 823, 121 N. W. 582.
2 Taylor v. Caldwell, 3 Best. & 3. 826.
3 Nickoll v. Ashton , 2 Q. B. 298.
4 Lovering v. Buck Mountain Coal Co., 54 Pa. St. 291.
Where the building, as such, was destroyed by a windstorm, but the materials remained, it was held that the contract was not discharged, since the materials could be moved and the building could be rebuilt. Board of Education v. Townsend, 63 0. S. 514, 52 L. R. A. 808, 59 N. E. 223.
5 Anglo-Egyptian Navigation Co. v. Rennie, L. R. 10 C. P. 271.
6 California. Ainsworth v. Ritt, 33 Cal. 89.
Georgia. Alexander v. Dorsey, 12 Ga. 12, 56 Am. Dec. 443.
Indiana. Womack v. McQuarry, 23 Ind. 103, 92 Am. Dec. 306.
Massachusetts. Stockwell v. Hunter, 52 Mass. (11 Met.) 448, 45 Am. Dec. 220; Roberts v. Lynn Tee Co., 187 Mass. 402, 73 N. E. 523 (obiter, as an interest in the soil passed).
New York. Graves v. Berdan, 26 N. Y. 498 [affirming. Graves v. Berdan, 29 Barb. (N. Y.) 100].
Ohio. Winton v. Cornish, 5 Ohio 477.
Pennsylvania. Moving Picture Co. v. Scottish & National Ins. Co., 244 Pa. St. 358, 90 Atl. 642.
Tennessee. Nashville. C. & St. L. Ry. v. Heikens, 112 Tenn. 378, 65 L. R. A. 298, 79 S. W. 1038 (obiter, as interest in land passed).
West Virginia. Arbeiz v. Exley, 52 W. Va. 476, 61 L. R. A. 957, 44 S. E. 149 (obiter, as interest in land passed).
A contract by which a portion of a department store is to be used by a dealer at an agreed compensation, is held to be discharged by the destruction of the building in which such store is located; and such dealer has no legal right to insist that the department store shall permit him to make use of a corresponding space in the building in which such department store is subsequently located. Martin Emerich Outfitting Co. v. Siegel, 237 Ill. 610, 20 L. R. A. (N.S.) 1114, 86 N. E. 1104.
7 See Sec. 2680.