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.
If the contract is not to deliver specific property, but to deliver property of a given kind and quality, which may be performed by the vendor's delivering any property of that kind and quality which he may select, the destruction of property which the vendor had acquired with the intention of tendering it in performance of his contract does not discharge him from liability.1 A contract to manufacture and furnish tin cans which are not, by the terms of the contract, to be made out of any specific lot of metal, is not discharged by the fact that the arrival of the metal out of which the vendor intended to manufacture such cans was delayed by violent storms.2 A contract to deliver "one thousand bushels" of wheat of a specified grade may be satisfied by the delivery of one thousand bushels of any wheat of that grade; and accordingly the destruction of the specific lot of wheat which the vendor had intended to deliver in performance of such contract is not a discharge.3 A contract to exchange flour for wheat is not discharged after the delivery of the wheat by the destruction of the mill with which the miller expected to grind the flour and in which the wheat was stored.4
Wisconsin. Wetzler v. Duffy, 78 Wis. 170, 12 L. R. A. 178, 47 N. W. 184.
4 Brewer v. Herbert, 30 Md. 301, 96 Am. Dec. 582; Dunn v. Yakish, 10 Okla. 388, 61 Pac. 926.
5 Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325; Thompson v. Gould, 37 Mass. (20 Pick.) 134; Hawkes v. Kehoe, 193
Mass. 419, 10 L. R. A. (N.S.) 125, 79 N. E. 766; Wilson v. Clark, 60 N. H. 352.
6 Good v. Jarrard, 93 S. Car. 229, 43 L. R. A. (N.S.) 383, 76 3. E. 698.
7 Good v. Jarrard, 93 S. Car. 229, 43 L. R. A. (N.S.) 383, 76 S. E. 698.
8 Hallett v. Parker, 68 N. H. 098, 39 Atl. 433.
The destruction of property which is not the subject-matter of the contract does not discharge the contract, even though the tacit assumption of its continued existence was a material inducement, and, it may be, the controlling inducement by which one party was led to make the contract. Thus a contract of employment of a traveling salesman5 or a clerk6 is not discharged by the destruction of his employer's place of business. So a contract by which A agrees with B, C and D, the owners of different boats, to solicit and secure freight for their boats for the following season for a fixed salary, to be paid one-third by each of the owners, is not discharged as to B by the destruction of his boat.7 So a contract to deliver ironwork is not discharged by the accidental burning of the vendor's mill at which he had expected to manufacture such ironwork.8 A contract employing a teacher is not discharged by the destruction of the schoolhouse in which it was expected that the school would be kept.9 So a contract to furnish electricity "for the purpose of operating his machinery," "in his business as a miller," is not discharged by the destruction of the mill in which it was expected that the electricity would be used.10
1 Pacific Sheet Metal Works v. California Canneries Co., 164 Fed. 080; Anderson v. May, 50 Minn. 280, 36 Am. St. Rep. 642, 17 L. R. A. 555, 52 N. W. 630; Black v. Webb, 20 Ohio 304.
2 Pacific Sheet Metal Works v. California Canneries Co., 164 Fed. 080.
3 Black v. Webb, 20 Ohio 304.
4 Martin v. Mill Co.. 40 Mo. App. 23.
5 Turner v. Goldsmith [1S01], 1 Q. B. 544.
6 Madden v. Jacobs. 52 La. Ann. 2107, 50 L. R. A. 827, 28 So. 225.
7 Nicol v. Fitch, 115 Mich. 15, 69 Am. St. Rep. 542, 72 N. W. 088.
8 Booth v. Rolling Mill Co., 60 N. Y. 4S7.
9 School Directors v. Crews, 23 Ill. App. 367; Corn v. Board, etc., 30 Ill. App. 446; Charleston School Township v. Hay, 74 Ind. 127; Smith v. School District, 60 Mich. 580. 37 N. W. 567; Cashen v. School District. 50 Vt. 30
Contra. Hall v. School District. 24 Mo. App. 213. which is subsequently explained in Rudy v. School Disrtict, 30