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.
In a number of cases, it is suggested as a general principle, that the happening of an event which might readily have been anticipated by a reasonable man, can not be regarded as impossibility so as to operate as a discharge of a positive and unconditional covenant to perform a certain act.1
In the absence of a provision in the contract which shows an intention to impose the risk of climatic conditions upon one or the other of the parties to the contract, one who has made a positive and unconditional covenant to perform is assumed to take the risk of climatic conditions,2 at least if such conditions are not abnormal; and the happening of climatic conditions which, in the particular case prevent him from performing, is not regarded as impossibility.3 Neither cold weather,4 nor floods,5 operate as a discharge of such covenants. One who has agreed to construct a building at a certain season of the year,6 or who has agreed to commence excavation whenever he is required so to do,7 can not treat such contract as discharged, although in the particular in-stance the weather is so cold that satisfactory performance of the contract is impracticable. The fact that there is so much ice about a dock in the early spring that it is difficult for a vessel to approach, is not a discharge of a contract to carry goods on the first trip of a vessel.8 One who has entered into a contract to cultivate certain land is not discharged therefrom by the fact that an excessive rainfall rendered such cultivation impracticable.9 One who has agreed to furnish pasture for certain animals is not discharged by the fact that a drought,10 even if unprecedented,11 makes it impracticable for him to perform with the means at his disposal. The fact that floods in western streams cause a change in the channel can not operate to discharge a contract for driving logs down to a slough which has once been filled up by a flood.12 In this case the contract was not rendered absolutely impossible, since at some expense the promisor could make use of another slough for the purpose of performing his contract. The fact that the Ohio river is frozen in midwinter,13 and that the Yukon is too low for navigation by steamboat at certain stages of the year,14 are events which should have been foreseen, and can not operate to discharge a contract for transportation. A contract to raise and deliver a certain quantity of beans, not to be raised on any specific tract of land, is not excused by an unexpected early frost which destroyed the crop which the promisor was raising with the intention of delivering it when grown in completion of his contract.15 However, a contract to raise a certain kind of crop upon a specific tract of land has been held to be excused because of the failure of such crop due to a blight16 or to unusual climatic conditions.17 Such facts have been treated as a discharge even where the contract specified the minimum quantity which the promisor agreed to raise and deliver.18 One who agrees to complete a building,19 or grade a street,20 by a certain time, is not excused from liability for delay caused by bad weather, at least if such weather might have been anticipated as a possible contingency. So one who agrees to harvest a crop for another, to begin work not later than a given date, is liable for damages caused by high wind which might reasonably have been anticipated as possible, and which occurred during the week after the time fixed for commencing work in which the contractor delayed its commencement.21 So one who agrees to deliver certain logs by a given time if the logging season permits, is not excused by climatic conditions which are not uncommon, although more unfavorable to work than usual.22 A rise in a stream, threatening promisee's building, does not discharge a contract whereby promisor is to dig a ditch or canal, so that the promisee can stop the work without any liability for that which has been done already.23 A lessor agreed to repair a dam within ten days after the water has fallen to an average winter stage. The lessor was held liable for failure to begin repairs at such time, even though it was expensive to make such repairs then, and a subsequent rise of the stream made it impossible to repair at a later time.24 A bought land of an improvement company, which company agreed to run cars to such land from the town every half-hour "as such street railroads are usually run"; or, in default of such operation, to take back the land and pay certain damages to the vendee. A heavy snowfall prevented the running of such cars for some time, though the railroad company used snowplows and made every effort to clear the tracks. The cars were run as well and as regularly as cars on similar roads in the vicinity. This was held not to give the vendee the right to rescind the contract.25 An unexpected flood has been held not to excuse delay in completing a bridge.26 A contract to replace a bridge if removed by any cause except fire within a certain period, is not discharged by the fact that such bridge was destroyed by an unprecedented flood.27 A contract to saw logs into lumber is not discharged by the fact that an unprecedented rainfall prevented access to such logs.28
1 Illinois. Harley v. Sanitary District, 226 III. 213, 80 N. E. 771.
Iowa. Brent v. Head. 138 Ia. 146, 16 L. R. A. (N.S ) 801, 115 N. W. 1106.
Kansas. Cox v. Chase, 95 Kan. 531, L. R. A. 1915E, 590, 148 Pac. 766.
Kentucky. Nance v. Patterson Building Co., 140 Ky. 564, 140 Am. St. Rep. 398, 131 S. W. 484.
Michigan. Schliess v. Grand Rapids, 131 Mich. 52, 90 N. W. 700.
Oregon. Pengra v. Wheeler, 24 Or. 632, 21 L. R. A. 726, 34 Pac. 354.
2 Berg v. Erickson, 234 Fed. 817, L. R. A. 1917A, 648; Brent v. Head. 138 Ia. 146, 16 L. R. A. (N.S.) 801. 115 N. W. 1106; Nance v. Patterson Building Co., 140 Ky. 564, 140 Am. St. Rep. 398, 131 S. W. 484; Schliees v. Grand Rapids, 131 Mich. 52, 90 N. W. 700.
3 United States. Berg v. Erickson, 284 Fed. 817, L. R. A. 1917A, 648.
Illinois. Harley v. Sanitary District, 226 Ill. 213, 80 N. E. 771.
Iowa. Brent v. Head, 138 Ia. 146, 16 L. R. A. (N.S.) 801, 115 N. W 1106.
Kansas. Cox v. Chase, 95 Kan. 531, L. R. A. 1915E, 590, 148 Pac. 766.
Oregon. Pengra v. Wheeler, 24 Or. 532, 21 L. R. A. 726, 34 Pac. 354.
Texas. Gunter v. Robinson (Tex. Civ. App.), 112 S. W. 134.
4 Harley v. Sanitary District, 226 Ill. 213, 80 N. E. 771; Brent v. Head, 138 Ia. 146, 16 L. R. A. (N.S.) 801, 115 N. W. 1106; Schliees v. Grand Rapids, 131 Mich. 52, 90 X. W. 700.
5 Pengra v. Wheeler, 24 Or, 532, 21 L. R. A. 726, 34 Pac. 354.
6 Brent v. Head, 138 Ia. 146, 16 L. R. A. (N.S.) 801, 115 N. W. 1106.
7 Harley v. Sanitary District, 226 Ill 213, 80 N. B. 771.
8 Shores Lumber Co. v. Claney, 102 Wis. 235, 78 N. W. 451.
9 Gunter v. Robinson (Tex. Civ. App.), 112 S. W. 134.
10 Berg v. Erickson, 234 Fed. 817, L. R. A. 1917A, 648; Cox v. Chase, 95 Kan. 531, L. R. A. 1913E, 590, 14S Pac. 766.
11 Berg v. Erickson, 234 Fed. 817, L. R. A. 1917A, 648.
12 Mississippi River Logging Co. v. Robson, 69 Fed. 773, 16 C. C. A. 400 [affirming, 61 Fed. 893].
13 Eugster v. West, 35 La. Ann. 119, 48 Am. Rep. 232.
14 Smith v. Trading Co., 20 Wash. 580, 44 L. R. A. 557, 56 Pac. 372.
15 Anderson v. May, 50 Minn. 280, 36 Am. St. Rep. 642, 17 L. R. A. 555, 52 N. W. 530.
16 Howell v. Coupland, L. R. 9 Q. B. 462.
17 Ontario. etc.. Association v. Packing Co., 134 Cal. 21, 53 L. R. A. 681, 66 Pac. 28.
18 Ontario, etc., Association v. Packing Co., 134 Cal. 21, 53 L. R. A. 681, 66 Pac. 28.
19 Georgia. Cannon v. Hunt. 113 Ga. 301, 33 S. E. 983.
Iowa. Brent v. Head, 138 Ia. 146. 16 L. R. A. (N.S.) 801, 115 N. W. 1106.
Missouri. Cochran v. Ry., 131 Mo. 607, 33 S. W. 177.
Hew York. Ward v. Building Co.. 125 N. Y. 230, 26 N. E. 256.
Washington. Reichenbach v. Sage. 13 Wash. 364, 52 Am. St. Rep. 51, 43 Pac. 354.
20 McQuiddy v. Brannosk. 70 Mo. App. 536.
21 Holt Mfg. Co. v. Thornton, 136 Cal. 232, 68 Pac. 708.
22 Godkin v. Monahan, 83 Fed. 116, 27 C. C. A. 410.
23 Vicksburg Water Supply Co. ▼. Gorman, 70 Miss. 360, 11 So. 680.
24 Pengra v. Wheeler, 24 Or. 532, 21 L. R. A. 726, 34 Pac. 364.
25 Buffalo, etc., Co. v. Improvement
Co., 165 N. Y. 247, 51 L. R. A. 951, 59 N. E. 5.
26 Phoenix Bridge Co. v. United States, 38 Ct. Cl. 492.
27 Mitchell v. Hancock County, 91 Miss. 414, 45 So. 571 [sub nomine, Mitchell v. Weston, 15 L. R. A. (N.S.) 833].
28 Runyon v. Culver, 168 Ky. 45, L. R. A. 1916F, 3, 181 S. W. 640.