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.
One who agrees to do a specific act which can, without violating the terms of the contract, be performed in one of two ways, is not discharged from his contract because one of the two methods of performance becomes impossible if the primary object of the contract is to secure such performance without regard to the means by which such performance is to be accomplished.1
9 Fuller v. Ins. Co., 184 Mass. 12, 67 N. E. 879.
10 See ch. LXXXIV.
11 See ch. LXXXIV.
12 Morley v. Powers, 78 Tenn. (10 Lea) 219.
Compare Rudy v. School District, 30 Mos App. 113, where it was held that the defense that not enough had been paid into the treasury was insufficient as the only defense was that not enough funds were provided.
13 Notice by vendee in an executory contract to vendor. Hobbs v. Brick Co., 157 Mass. 109, 31 N. E. 756.
14 See ch. LXXXIV.
1 England. Barkworth v. Young, 4 Drew 1.
Louisiana. Hunter Canal Co. v. Robertson, 113 La. 834, 37 So. 771.
Massachusetts. Drake v. White, 117 Maes. 10; Frothingham v. Seymour, 121 Mass. 409.
New Mexico. Chappell v. McMillan, 15 N. M. 686, 113 Pac. 611.
Ohio. Board of Education v. Town-Bend, 63 O. S. 514, 52 L. R. A. 868, 59 N. E. 223 [reversing, 15 Ohio C. C. 674].
Oregon. Fleishman v. Meyer, 46 Or. 267. 80 Pac. 209.
Washington. Adams v. Ames, 19 Wash. 425, 53 Pac. 546.
The fact that the only possible method of performance is more expensive to the promisor than would have been the method which does become impossible, does not operate as performance.2 A promise to deliver a specific chattel or its equivalent in money is not discharged by the destruction of the chattel, since its equivalent in money can be paid.3 A contract to return an animal in as good condition as when received or to pay therefor, is not discharged by the death of the animal without the fault of the bailee, since the bailee can make such payment.4 A contract to carry goods which can be performed by transportation by water, on the one hand, or by wagon and railway, on the other, is not discharged by the fact that transportation by water has become impossible.5 One who agrees to remove goods within a certain time is not discharged by the fact that it is impossible to remove them by boat where they could have been removed in some other way.6 Where A agrees to remove, reconstruct and rebuild a schoolhouse, and under the terms of the contract the house can be removed, either as a complete building or can be torn down and the materials used to rebuild another schoolhouse, the fact that the house is blown down by a storm and can not be removed as a complete building does not discharge the contract.7 A contract to convey realty or to pay money is not discharged, as against the personal representatives of the promisor, by his death without making such conveyance, since they can at least make such payment.8 A promise by A to convey to B land on which C had an option, if C did not exercise such option, while if C did exercise such option A was to pay to B a certain sum, does not become impossible of performance if C exercises such option, since A can perform the alternative covenant.9 A contract by which a father agrees to leave to a daughter a share equal with his other children is not discharged by reason of impossibility on the death of the father without making a will, since it may be enforced against the father's estate.10 A contract to furnish water for irrigation which can be performed either by furnishing water flowing through ditches by gravity, or by pumping water, is not discharged by the fact that the stage of water is such that it is necessary to pump it.11
2 See Sec. 2706.
3 Drake v. White, 117 Mass. 10.
4 Grady v. Schweinler, 16 N. D. 452, 125 Am. St. Rep. 674, 14 L. R. A (N.S.) 1089, 113 N. W. 1031.
See, however, where inability to return the animal was due to a disease existing when possession of the animal was originally delivered. Rosenthal v. Rambo, 165 Ind. 584, 3 L. R. A. (N.S.) 678, 7ft N. E. 404.
5 Fleishman v. Meyer, 46 Or. 267, 80 Pac. 209.
6 Adams v. Ames, 19 Wash. 425, 53 Pac. 646 (where the contract contained a proviso "wind, tide and other acts of God permitting").
7 Board of Education v. Townsend, 63 O. S. 514, 62 L. R. A. 868, 69 N. E. 223 [reversing, 15 Ohio C. C. 674].
8 State v. Worthington, 7 Ohio 171.
A agreed to pay money or convey land in consideration of the construction of a canal through a specified town. A's death made it impossible for his executors to convey the land, but it did not operate as a discharge of the covenant to pay money and assumpsit will lie against them as executors to recover such amount of money. State v. Worthington, 7 Ohio 171.
If, on the other hand, a primary object of the contract is to secure to the promisor the right to choose between two methods of performance, the impossibility of one method of performance defeats such primary object, and accordingly it is hold to operate as a discharge of the entire contract.12 If a bond is conditioned upon the payment of the debt by the judgment debtor or upon his surrendering his body in execution, and arrest and imprisonment for debt is subsequently forbidden by law, the sureties upon such bond are thereby discharged.13