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.
If the party who makes complete performance impossible has received the substance of that for which he contracted, and if his act makes literal performance impossible, the adversary party may recover as though he had performed in full.1 If A sells to B prop-erty which is to meet the requirements of a certain test, B can not prevent liability on his part by making the performance of such test impossible.2 Where A agreed to furnish air-propellers to remove the smoke from B's tempering-room, B to furnish the power from a shaft in such room, and the machine to be subject to thirty days' successful trial, it was held that the fact that the shaft broke, and that B declined to furnish a new shaft, prevented thirty days' successful trial, and left B liable to A for the contract price.3 A sold a horse to B for an agreed price, and B was to pay one hundred dollars more if on a speed trial within ninety days such horse trotted as fast as another specified horse. B declined to make such test, because the horses were not in proper condition for the test within ninety days, and he did not allow such test to be made afterwards. It was held that on proof of the fact that the horse sold was as fast as the other A could recover the extra one hundred dollars.4 A floating dock, which is to be tested by means of a suitable vessel furnished by the government within two months after the dock is completed, need not be tested if the government does not furnish a suitable vessel for such test, and the builder may recover the contract price to become due when such test was made, without making such test.5 If a contract to make compensation for the purchase of a manufacturing plant provides for additional compensation in case the output reaches a certain amount, and the purchaser makes performance impossible by dismantling the plant and preventing the test, the party to whom such extra compensation was to have been made may recover reasonable compensation for the services if he can show such additional value.6
2 4 See Sec. 2904.
2 5 See Sec. 2904.
26 Barsby v. Warren, 47 Neb. 275, 66 N. W. 409:
1 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, 3561; Lehmann v. Warren, 209 111. 264, 70 N. E. 600; Kinney v. Philadelphia Watch Case Co., 76 N. J. L. 735, 71 Atl. 269.
2 Deyo v. Hammond, 102 Mich 122, 25 L. R. A. 719, 60 N. W. 455; Howard v. Mfg. Co., 162 N. Y. 347, 56 N. E. 986.
See also, E. I. Du Pont de Nemours Powder Co. v. Schlottman, 218 Fed. 353, 134 C. C. A. 161 [affirming, Schlottman v. E. I. Du Pont de Nemours Powder Co., 210 Fed. 3561.
3 Howard v. American Mfg. Co., 162 N. Y. 347, 56 N. E. 986.
If the vendee agrees to measure property in a certain way before payment is due, and then makes such measurement impossible, the vendor may recover upon proof of the quantity furnished.7 Thus A agreed to furnish to a city stone tobe crushed, which after crushing was to be used to macadamize certain streets, and the atone was to be measured upon the streets when finished. A furnished such stone, and it was crushed; but the city did not place it upon the streets. The city was not thereby discharged from liability.8 Under a contract for removing tar which provides that A's suspension of work for ten days shall give to B the right to terminate the contract, A suspended work for nine days; on the tenth day A was ready to resume, but B had given his employes a holiday and there was no one to do the weighing provided for by the contract. These facts were held not to justify B in terminating the contract.9