If the act, the performance of which is prevented by impossibility, is not one, the performance of which has been promised by one of the parties to the contract, but it is merely an act the performance of which will operate as an acceptance of an offer for a unilateral contract, or if such act is an express condition precedent to the right of the party by whom such act is to be performed to demand performance on the part of the adversary party, impossibility of performing such act has no effect upon the liability of the party from whom performance was due, since such party was not bound to perform in the first instance. The question which arises in cases of this sort, in which performance is prevented by impossibility, is whether such impossibility excuses non-performance and whether it enables the party who omitted to perform for one of these reasons, to enforce the contract as if he had performed in accordance with its terms. In cases of this sort the great weight of authority is in favor of the view that, as in the case of contracts which consist of mutual promises.1 impossibility does not amount to performance, whatever other effect it may have; and accordingly the party who has failed to perform by reason of impossibility can not enforce the contract as if he had performed.2 If the contract of insurance does not bind the insured to pay a premium in the future, but merely gives to him the option of paying the premiums at certain periods of time in order to keep the policy in force, or if it is provided in express terms that failure to pay the premium shall prevent the policy from continuing in force, the fact that the insured has been prevented from paying premiums by reason of his sickness,3 or by reason of his insanity,4 does not justify his beneficiaries or his estate in treating such excuse as equivalent to a performance of such condition. The policy, accordingly, is no longer in force upon default in paying the premiums in accordance with its terms, notwithstanding such excuse. While this principle occasionally leads to very harsh results, and while legislation seems to be necessary to cover cases of this sort, the matter seems to be one for the legislature rather than for the courts.

1 See Sec. 566.

2 United States. Klein v. New York Life Ins. Co., 104 U. S. 88, 26 L. ed. 662; Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 262, 26 L. ed. 765.

Connecticut Pitts v. Hartford Life & Annuity Ins. Co., 66 Conn. 376, 50 Am. St. Hep. 96, 34 Atl. 95.

Georgia. Hipp v. Fidelity Mutual Life Ins. Co., 128 Ga. 491, 12 L. R. A. (N.S.) 319, 57 S. E. 892.

Illinois. Hansen v. Supreme Lodge, 140 Ill. 301, 29 N. E. 1121.

Iowa. Sleight v. Supreme Council

Mystic Toilers, 121 Ia. 724, 96 N. W. 1100.

Maryland. McCann v. Supreme Conclave, Improved Order Heptasophs, 119 Md. 655, 46 L. R. A. (N.S.) 537, 87 Md. 383.

New York. Wheeler v. Connecticut Mutual Life Ins. Co., 82 N. Y. 543, 37 Am. Hep. 594.

Texas. Brotherhood of Railway Trainmen v. Dee, 101 Tex. 597, Ill S. W. 396.

Washington. Sheridan v. Modern Woodmen, 44 Wash. 230, 7 L. R. A. (N.S.) 973, 87 Pac. 127.

The courts, however, have occasionally attempted to meet the situation by insisting that in case of sickness, insanity, and the like, by reason of which notice to the insured would be ineffective, notice ought to be given to the beneficiary before the insurance company can forfeit the policy for non-payment of premium at least if the beneficiary has notified the insurance company of the condition of the insured, and has requested that notice of premiums and assessments be given to the beneficiary.5 If property has been delivered under a contract which provides that the adversary party may terminate it at his election, or under certain circumstances,6 a question arises as to the effect of the impossibility of performing such condition in case of the destruction of such property without the fault of either party, upon which there is a conflict of authority. In some jurisdictions it is held that the destruction of such property without the fault of either party operates as a discharge of a provision which requires the return of such property in order to enable the party to whom it has been delivered to exercise his option to terminate the contract.7 In other jurisdictions it is held that the fact that performance becomes impossible prevents the party to whom such property has been delivered from exercising his option to terminate the contract.8

3 Hipp v. Fidelity Mutual Life Ins. Co., 128 Ga. 491, 12 L. R. A. (N.S.) 319, 57 S. E. 892; Hansen v. Supreme Lodge. 140 Ill. 301, 29 N. E. 1121; Sleight v. Supreme Council, 121 Ia. 724, 96 N. W. 1100; Brotherhood of Railway Trainmen v. Dee, 101 Tex. 597, 111 S. W. 396.

4 United States. Klein v. New York Life Ins. Co., 104 U. S. 88, 26 L. ed. 662; Thompson v. Knickerbocker Life Ins. Co., 104 U. S. 252, 26 L. ed. 765.

Connecticut. Pitts v. Ins. Co., 66 Conn. 376, 50 Am. St. Rep. 96, 34 Atl. 95.

Maryland. McCann v. Supreme Con-clave, Improved Order of Heptasophs, 119 Md. 655, 46 L. R. A. (N.S.) 537, 87 Md. 383.

New York. Wheeler v. Connecticut Mutual Life Ins. Co., 82 N. Y. 543, 37 Am. Rep. 594.

Washington. Sheridan v. Modern Woodmen, 44 Wash. 230, 7 L. R. A. (N.S.) 973, 87 Pac. 127.

5 Buchanan v. Supreme Conclave, 178 Pa. St. 466, 56 Am. St. Rep. 774, 34 L. R. A. 436, 35 Atl. 873.

6 See Sec. 2639.

7 Gottlieb v. Rinaldo, 78 Ark. 123, 6 L. R. A. (N.S.) 273, 93 S. W. 750.