The act of the party who makes performance on his own part impossible must be such as makes performance absolutely impossible and not merely improbable.1 At the same time it is generally held that a party who has power to perform when he makes the contract, and who subsequently puts it out of his own power to perform, discharges the contract although he may subse-. quently acquire power to perform with the consent of a third person.2

2 Ogdens v. Nelson [1904], 2 K. B. 410; Lloyd v. Dickson, 110 La. 90, 40 So. 542; Genet v. Canal Co., 136 N. Y. 593, 19 L. R. A. 127, 32 N. E. 1078.

3 See Sec. 2882 et seq.

4 This is frequently spoken of as a voluntary inability, disability or disqualification. Loren v. Hillhouse, 40 O. S. 302; Hunter v. Wenatchee Land Co., 50 Wash. 438, 97 Pac. 494; Teachenor v. Tibbals, 31 Utah 10, 86 Pac. 483.

5 E. I. Du Pont de Nemours Powder Co. v. Schlottman, 218 Fed. 353 [affirming, Schlottman v. E. I. Du Pont de Nemours Powder Co., 210 Fed. 356]; Krebs Hop Co. v. Livesley, 51 Or. 527, 92 Pac. 1084; Moha v. Hudson Boxing Club, 164 Wis. 425, L. R. A. 1917B, 1238, 160 N. W. 266.

6 See Sec. 2667 et seq.

7 Ogdens v. Nelson [1905], A. C. 109.

See Sec. 2913.

1 See 5Sec. 2914 et seq and 2937.

If A has agreed to sell a specific thing to B, or if A's performance depends upon his possession of a specific thing, A's act in selling such thing before performance is generally regarded as a breach,3 although it is, of course, possible that A may repurchase such property before the time for performance has arrived.4 If A has agreed to pay a certain amount out of the profits of property which B has transferred to him, A's act in selling such property to C operates as a breach, and B may maintain an action against A,5 even though by the terms of the original contract A had incurred no personal liability except that of operating such property, and although A had not guaranteed any profits.6 A's contract to employ B to sell specific realty7 is discharged by A's conveying such realty to another. In some jurisdictions, however, it is said that A's sale to C docs not operate as a discharge of A's contract to sell to B,8 since A may be able to secure a good title thereafter,9 or he may have reserved B's rights in his contract to sell to C.10 It has been held that if A, after agreeing to convey specific realty to B, conveys it to X, who knows of B's contract, B can enforce the contract as against X, and therefore can not treat such sale as a discharge.11 This is especially true if the conveyance to X is expressly made subject to B's rights.12

2 England. Telegraph Despatch Co. v. McLean, L. R. 8 Ch. 658.

United States. Lovell v. St. Louis Mutual Life Ins. Co., Ill U. S. 264, . 28 L. ed. 423.

South Dakota. Hudson v. Archer, 9 S. D. 240, 68 N. W. 541.

Utah. Teachenor v. Tibbals, 31 Utah 10, 86 Pac. 483.

Vermont. White v. Lumiere North American Co., 79 Vt. 206, 6 L. R. A. (N.S.) 807, 64 AtL 1121.

Wisconsin. Treat v. Hiles, 81 Wis. 280, 50 N. W. 896; Lyle v. McCormick Harvesting Machine Co., 108 Wis. 81, 51 L. R. A. 906, 84 N. W. 18.

3 England. Telegraph Despatch Co. v. McLean, L. R. 8 Ch. 658; Synge v. Synge [1894], 1 Q. B. 466; Ogdens v. Nelson [1904], 2 K. B. 410.

United States. Lovell v. St. Louis Mutual Life Ins. Co., Ill U. S. 264, 28 L. ed. 423; Reynolds v. Manhattan Trust Co., 83 Fed. 593, 27 C. C. A. 620.

Georgia. Brooks v. Miller, 103 Ga. 712, 30 S. E. 630.

Michigan. Weaver v. Aitcheson, 65 Mich. 285, 32 N. W. 436.

South Dakota. Hudson v. Archer, 9 S. D. 240, 68 N. W. 541.

Utah. Teachenor v. Tibbals, 31 Utah 10, 86 Pac. 483.

Wisconsin. Treat v. Hiles, 81 Wis. 280, 50 N. W. 896; Lyle v. McCormick Harvesting Machine Co., 108 Wis. 81, 51 L. R. A. 906, 84 N. W. 18.

4 See on this question, 1 Rolle's Abridg. 248F, pl. 1.

5 Teachenor v. Tibbals, 31 Utah 10, 86 Pac. 483; Treat v. Hiles, 81 Wis. 280, 50 N. W. 896.

"The finding that there were no net profits derived from an actual sale of ore may be accepted as correct, if by that is meant profits in cash, and yet that, under the circumstances here disclosed, can and ought not to be held fatal to the plaintiffs recovery. Tib-bals knew what Marioneaux's contract was before he purchased his interest in the mine, and according to the uncontradicted testimony of the plaintiff, told the latter that he would pay three-eighths of the $850,' which amounts to what is involved in this suit. Having bought subject to that contract, he was bound by it the same as any other purchaser under it, and it would be clearly unwarranted, inequitable and unjust to hold that under the terms of the instrument the purchasers could extract such vast amounts of ore, stack it up on the dump and in the mine, refrain from selling it and converting it into cash until they sold the mine, and then sell it and the mine for one lump sum; and, in that way, rid themselves of all liability, under the contract, for the purchase price.

"A construction of that instrument which would countenance such a transaction, would be in contravention of every principle of justice and fair dealing between men. Can it be doubted that when that agreement was made, the parties intended that the ore, as it was extracted, should be sold, without unreasonable delay, as is usual in the business of mining? We think not. Nor does anything appear from the context of the instrument to indicate that such was not the intention of the parties. It is clear that there was an abundance of ore extracted before the mine was sold, saying nothing of that which was extracted afterwards, to have paid out of the net proceeds thereof, if it had been sold, the balance of the purchase price, and therefore, it is equally clear that the defendant can not escape liability, under the contract, by his failure to insist upon the sale of the ore, and payment of balance, before sale of the mine to the corporation. He can not escape liability by putting it out of his power to perform his contract in the particular way provided in the instrument. The law is that where one, as in this instance, voluntarily puts it out of his power to do what he agreed to do, in the way agreed upon, he commits a breach of contract and becomes liable generally. Wolf v. Marsh, 54 Cal. 228; Johnson v. Schenck, 15 Utah 490, 50 Par. 021; Heard v. Bowers, 23 Pick. (Mass.) 455; Newcomb v. Brackett, 16 Mass. 161; Burton v. Shotwell, 13 Bush. (Ky ) 271; Mclntyre v. Ajax Min. Co., 20 Utah 323, 60 Pac. 552; Buttrick v. Holden, 8 Cush. (Mass.) 233; James v. Burchell, 82 N. Y. 108; Reusens v. Mexican Nat. Const. Co.. (C. C), 22 Fed. 522. We do not consider it important to discuss any other question presented." Teachcnor v. Tibbals, 31 Utah 10, 86 Pac. 483.

6 Teachenor v. Tibbals, 31 Utah 10. 86 Pac. 4S3; Treat v. Hiles, 81 Wis. 2S0, 50 N. W. 896.

7 Brooks v. Miller, 103 Ga. 712, 30 S. E. 630.

8 Joyce v. Shafer, 97 Cal. 335, 32 Pac. 320; Shively v. Semi-Tropic Land and Water Co., 90 Cal. 259, 33 Pac. 848; Garberino v. Roberts, 109 Cal. 125, 41 Pac. 857.

9 Joyce v. Shafer, 97 Cal. 335, 32 Pac. 320.

10 Shively v. Semi-Tropic Land and Water Co., 99 Cal. 259, 33 Pac. 848.

11 Kreibich v. Martz, 119 Mich. 343, 78 N. W. 124; Fargo v. Wade, 72 Or. 477, L. R. A. 1915A, 271, 142 Pac. 830.

12 Fields v. Clayton, 117 Ala. 538, 67 Am. St. Rep. 189, 23 So. 530; Fairgo v. Wade, 72 Or. 477, L. R. A. 1015A, 271, 142 Pac. 830.

If, however, A has agreed to sell to B property which is not specific, but is to correspond to a given description, and thereafter A without B's assent selects certain articles, intending to deliver them in performance of such contract, his selection of such articles is not conclusive and his subsequent sale of them is therefore not a discharge.13

If B actually enjoys the benefit of performance on A's part, the fact that A has performed an act which might have made performance impossible does not discharge B from liability upon his contract after such performance.14 If A has agreed to permit B to use A's patent, and A subsequently transfers his rights to C without B's knowledge, such transfer does not discharge B from liability to A upon the original contract if B has in fact made use of such patent during the period fixed by the original contract.15 If a party makes performance on his own part impossible and the adversary party wishes to treat the contract as in effect, he must perform the precedent covenants on his part to be performed and he must offer to perform the concurrent covenants on his part to be performed.16

"The principle contended for by defendant's counsel, if upheld, might result in defeating every option for the purchase of real property the value of which had increased after the right to buy the premises had been given. In this state there is no statute prohibiting the alienation of land, and when an option to purchase any real prop-erty has been given, the owner of the premises has an estate therein which he can transfer, and the party accepting the title, if he has notice or knowledge of the privilege conferred by the writing, necessarily takes the premises cum onere. An option given by the owner of land for a valuable consideration, agreeing to sell it to another at a fixed price if accepted within a specified time, is binding upon the owner and all his successors in interest with knowledge thereof. Mueller v. Nort-mann, 116 Wis. 468, 96 Am. St. Rep. 997, 03 N. W. 538. At any time prior to the expiration of the time limited, Wade could have relinquished his right to purchase the land, and, had he done so, no recovery of any sum of money subsequently accruing could have been had against him. He can not, however, insist upon a continuation of the validity of the option without being liable for the instalments maturing thereon If the real property was thus obtained, burdened with the option, all the advantages accruing to the vendor from the contract, including the right to receive and collect the instalments maturing on account thereof, should also be transferred, particularly so when they were expressly assigned for that purpose." Fargo v. Wade, 72 Or. 477, L. R. A, 1915A, 271, 142 Pac. 830.

13 Stanford v. McGill, 6 N. D. 536, 38 L. R. A. 760, 72 N. W. 938.

14 Rosenthal Paper Co. v. National Folding Box & Taper Co., 226 N. Y. 313, 123 N. E. 766.

15 Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313, 123 N. E. 766.

16 McCormick v. Badham, 191 Ala 339, 67 So. 609.