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.
Mere difficulty of performance is not such impossibility as operates as discharge of a contract.1 A contract to render personal services and care is not discharged by the fact that the rendition of such services proves much more difficult than was anticipated when the contract was made.2 A contract to furnish goods at a given point is not discharged by impossibility if the party who has agreed to furnish such goods is unable to secure freight cars.3 A contract to plow land is not discharged by the fact that the land is so stony that it is impracticable to plow it in the manner contemplated.4 A provision in a policy of fire insurance requiring proof of loss in sixty days, and action to be brought in one year, is not discharged by the fact that the loss occurred after the death of the insured; and that owing to a dispute about the probate of the will an executor was not appointed or proof of loss made for two years after the loss, since a special administrator might have been appointed to make proof of loss.5 So under a contract to fill an order for potatoes "immediately," delay is not excused by the fact that it took eight days to collect the potatoes.6
9 Walsh v. Fisher, 102 Wis. 172, 72 Am. St. Rep. 865, 43 L. R. A. 810, 78 N. W. 437.
1 England. Blight v. Page, 3 Bos. & P. 203; Ford v. Cotesworth, L. R. 4 Q. B. 1*27; Brecknock v. Pritchard, 6 T. R. 750.
United States. Jacksonville, May-port, Pablo Ry. & Navigation Co. v. Hooper, 160 U. S. 514, 40 L. ed. Sec. 15; United States v. Gleason, 175 U. S. 588, 44 L. ed. 284; Graham v. United States, 231 U. S. 474, 58 L. ed. 319; Toomey v. United States, 49 Ct. Cl. 172; Carnegie Steel Co. v. United States, 49 Ct. Cl. 403.
Alabama. Louisville & Nashville Railroad Co. v. Fuqua, 187 Ala. 464, 52 L. R. A. (N.S.) 668, 65 So. 396.
Illinois. Steele v. Buck, 61 Ill. 343, 14 Am. Rep. 60; Ptacek v. Pisa. 231 Ill. 522, 14 L. R. A. (X.S.) 537. 83 X. E. 221.
Indiana. Connersville Wagon Co. v. McFarlan Carriage Co., 166 Ind. 123, 3 L. R. A. (X.S.) 709, 76 X. E. 294.
Iowa. Union v. Smith, 39 Ia. 9, 18 Am. Rep. 39.
Maryland. Ess-Arr Knitting Mills v. Fischer. 132 Md. 1, 103 Atl. 91.
Massachusetts. Boyle v. Canal Co., 39 Mass. (22 Pick.) 381, 33 Am. Dec.
749; Adams v. Nichols, 41 Mass. (19 Pick.) 275, 31 Am. Dec. 137.
Minnesota. Anderson v. May, 50 Minn. 280, 36 Am. St. Rep. 642, 17 L. R. A. 555, 52 N. W. 530.
Mississippi. Hood v. Moffett, 109 Miss. 757, L. R. A. 1916B, 622, 69 So. 664.
New Hampshire. Leavitt v. Dover, 67 X. H. 94, G8 Am. St. Rep. 640, 32 Atl 156.
New Jersey. Arnold v. Hagerman, 45 X. J. Eq. 186, 14 Am. St. Rep. 712, 17 Atl. 93.
New York. Beebe v. Johnson. 19 Wend. (N. Y.) 600, 32 Am. Rep. 518; Prospect Park, etc., R. R. v. R. R., 144 X. Y. 152, 26 L. R. A. 610, 39 N. E. 17.
North Dakota. Gile v. Interstate Motor Car Co., 27 N. D. 108, L. R. A. 1915B, 109, 145 N. W. 732.
Oklahoma. Clements v. Jackson County Oil & Gas Co., - Okla. -, L. R. A. 1917C, 437, 161 Pac. 216.
Pennsylvania. Janes v. Scott, 59 Pa. St. 178, 98 Am. Dec. 328.
West Virginia. Vale v Suiter, 68 W. Va. 353, 52 S. E. 313.
2 Ptacek v. Pisa, 231 Ill. 522, 14 L. R. A. (N,S.) 537, 83 N. E. 221.
3 Graham v. United States, 231 U.S 474, 58 L. ed. 319.
The fact that the contractor is personally unable to perform the contract is not a discharge.7 A physician who has agreed to furnish medical services to A is not discharged because of the fact that when such services were necessary such physician was attending B and that it was impracticable for him to leave B.8 A dealer who has agreed to purchase automobiles and to resell them is not discharged because of the fact that he is unable to sell such cars and that it is accordingly impracticable for him to pay for the cars which he has ordered.9 Under a contract containing a proviso "unless providentially hindered," a mere breakage of machinery does not operate as a discharge.10 Whether a strike which in fact makes it impracticable for one of the parties to a contract to perform it, operates as a discharge of such contract on the ground of impossibility, or whether it is merely an added difficulty or expense in performance which does not operate as a discharge, is a question upon which there has been a conflict of authority.11 A agreed to furnish water to B. The pressure was not kept up, and B's building was lost by fire by reason thereof. A's excuse for failing to keep up pressure was that without his fault a water-pipe had broken under a river in which the tide ebbed and flowed, and that the pipe could be repaired only when the tide was out. These facts were not held to discharge A.12 If a railroad company sells a ticket to a certain station, it is bound to stop at that station, and it is liable even if the train reaches such station before the conductor had had an opportunity of getting through the train.13
4 Waite v. Shoemaker, 50 Mont. 264, 146 Pac. 736.
5 Matthews v. Ins. Co., 154 N. Y. 449, 61 Am. St. Rep. 627, 39 L. R. A. 433, 4S X. E. 731.
6 Woods v. Miller, 55 Ia. 168, 39 Am. Rep. 170, 7 N. W. 484.
7 Alabama. Louisville & Nashville Railroad Company v. Fuqua, 187 Ala. 464. 52 L. R. A. (N.S.) 668. 65 So. 396.
Georgia. Day v. Jeffords, 102 On. 714, 99 S. E. 591.
Illinois. Summers v. Hibbard, 153 Ill. 102. 46 Am. St. Rep. 872, 38 N. E. 899.
Mississippi. Hood v. Moffett. 109 Miss. 757, L. R. A. 1916B, 622, 69 So. 664.
New Jersey. Wood v. Boney (N. .J. Eq, 21 Atl. 574.
New York. Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec 142; Tompkins v. Dudley, 25 X. Y. 272, 82 Am. Dec. 349: Wheeler v. Connecticut, etc., Ins. Co, S2 X. Y. 543, 37 Am. Rep. 594.
North Dakota. Gile v. Interstate Motor Car Co.. 27 N. D. 108, L. R. A. 1915B, 109, 145 X. W. 732.
8 Hood v. Moffet, 109 Miss. 757, L. R A. 1916B, 622, 69 So. 664.
9 Gile v. Interstate Motor Car Co., 27 N..D. 108, L. R. A 1915B, 109, 145 X. W. 732.
10 Day v. Jeffords, 102 Ga. 714, 29 S. E 591.
The effect of the shortage of dyes during the early part of the war of 1914, as impossibility of performance, has been discussed,14
11 In some cases special emphasis has been laid upon the fact that one of the parties to the contract was free, under the terms thereof, to use any means of performance that he might 6ee fit; and that accordingly the fact that a strike makes it impracticable for him to perform in the way in which he had expected, does not operate as a discharge of the contract. Barry v. United States, 229 U. S. 47, 57 L. ed. 1060; Summers v. Hibbard, 153 Ill. 102, 46 Am. St. Hep. 872, 38 N. E. 899.
In other jurisdictions a distinction has been drawn between peaceable strikes and strikes accompanied by violence. It has been held that a peaceable strike is not an excuse for delay in performance. Blackstock v. New York & Erie By., 20 N. Y. 48, 75 Am. Dec. 372. While a strike accompanied by violence which renders it impossible for one of the parties to perform by the means required in the contract operates as a discharge. Empire Transportation Co. v. Philadelphia & Beading Coal & Iron Co., 77 Fed. 919, 35 L. B. A. 623; Geismer v. Lake Shore & Michigan Southern By., 102 N. Y. 563, 53 Am. Rep. 837, 7 N. E. 828.
In other jurisdictions, however, the distinction between peaceable strikes and strikes accompanied by violence but in the particular case the dyer had made no specific promise as to the amount of dyeing which he would do, but he had in effect only promised to do the best that he could.15 has been repudiated; and the distinction which is made is between strikes which the employer can not prevent by any reasonable means, and those which he might have prevented by the use of reasonable means. The Rich-land Queen, 254 Fed. 668.
A contract to repair a vessel in a certain dry dock has been held to be discharged so as to excuse the contractor from damages due to delay, if such delay was due to a strike among his employes for shorter working hours, although such strike was not accompanied by violence. The Rich-land Queen, 254 Fed. 668.
An express provision to the effect that a contract is "subject to strikes beyond the control" of one of the parties, does not excuse performance where the only effect of the 6trike has been to increase the cost of the production of such article. Cottrell v. Smokeless Fuel Co., 148 Fed. 594, 9 I* B. A. (N.S.) 1187.
12 Middlesex Water Co. v. Whiting Co., 64 N. J. L. 240, 81 Am. St. Rep. 467, 49 L. B. A. 572, 45 Atl. 692.
13 Louisville & Nashville Railroad Co. v. Fuqua, 187 Ala. 464, 52 L. R. A. (N.S.) 668, 65 So. 396.
14 Ess-Arr Knitting Mills v. Fischer, 132 Md. 1, 103 Atl. 91.
The act of law which merely makes the performance of the contract more difficult and expensive than had been anticipated does not operate as a discharge.16 Thus a foreign corporation which operates a railroad is not discharged by a subsequent change of statute forbidding a foreign corporation to operate a railroad without first becoming "a body corporate under the laws of this commonwealth," since such corporation can reincorporate in such state.17 So a contract whereby A agrees to furnish a certain sum of money to compromise with B's creditors in consideration of B's transferring to A B's stock of goods, is not discharged because A is unable to obtain the dissolution of an attachment theretofore levied on such goods.18
Under a contract which provides for performance except in case of "unavoidable cause," the fact that part of the machinery by means of which the promisor had expected to perform had broken down, or the fact that there was an extraordinary demand for this material, is not an unavoidable cause.19