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.
The existence and the fact of breach are not, in any way, dependent upon the intention or wish of the party in default to break the contract, or upon the amount of care and faith used by the party who is in default,1 whether the breach is treated as a ground of discharge,2 or as giving a right of action for damages.3 If an attempt to consolidate a corporation fails because the parties who undertake such consolidation are unable to secure the necessary funds, the contract for such consolidation is broken so that no recovery can be had for services rendered thereunder without regard to the intention or misfortune of such parties in not being able to secure such funds.4 If a compulsory winding up of a corporation because of insolvency is not a discharge of its continuing contracts of employment, because of impossibility of performance,5 it amounts to a breach of such contracts,6 although such breach is not intentional or wilful on the part of the corporation.7 It is a breach, though not a wilful breach, for one under contract for the season to quit because a strike is ordered, and he is a union man and the strikers threaten personal violence.8 The fact that the breach is due to the failure or inability of third persons with whom the party in default has made contracts to enable him to perform his contract does not excuse such breach.9 Thus default in a building contract on the part of the contractor is not excused because due to the default10 or inability to perform,11 on the part of a subcontractor or materialman. Still less is the default of a subcontractor, materialman or employe a discharge available by the chief contractor where he has not in good faith endeavored to perform his contract with them so as to induce performance on their part,12 as where he fails to return when he agrees, and the wages of his employes are in arrears and their supplies are not furnished.13 So a party to a contract binding him to be "responsible for any and all wrong use of said electrotypes" is liable for use of them, in violation of the contract by one to whom he has sold his interest in such business.14 A contract to replace defective parts of a machine15 is broken where the performance is prevented by reason of a strike. The fact that nonperformance is due to a bona fide misconstruction of the contract does not prevent such non-performance from amounting to breach.19 The question whether the breach was wilful or not is often, however, important in determining whether the party in default may recover a reasonable compensation for work done by him under the.contract.17
1 England. Measures Brothers, Ltd, v. Measures , 2 Ch. 248 [affirming (1910), 1 Ch. 336].
United States. Central Trust Co. v. Chicago Auditorium Associntion, 240 U. S. 581, L. R. A. 1917B, 580, 60 L. ed. 811.
Connecticut. Jones v. Marlborough, 70 Conn. 583, 40 Atl. 460.
Iowa. Cornell v. Rodabaugh, 117 Ia. 287, 94 Am. St. Rep. 298, 90 N. W. 600.
Massachusetts. Douglas v. Lowell, 194 Mass. 268, 80 N. E. 510.
Mississippi. Vicksburg Water Supply Co. v. Gorman, 70 Miss. 360, II So. 680.
Hew Jersey. Fry v. Miles, 71 N. J. L. 293, 50 Atl. 246.
New York. Mosler safe Co. v. Maiden Lane Safe Deposit Co., 100 N.
Y. 470, 37 L. R. A. (N.S.) 363, 93 N. E. 81.
Wisconsin. Modern Steel Structural Co. v. English Construction Co., 129 Wis. 31, 108 N. W. 70.
2 Bacon v. Green, 36 Fla. 325, 18 So. 870; Baltimore v. Schaub, 96 Md. 534, 51 Atl. 106; Fry v. Miles, 71 N. J. L. 293, 59 Atl 246; Mosler Safe Co. v. Maiden Lane Safe Deposit Co., 100 N. Y. 479, 37 L. R. A. (N.S.) 363, 93 N. E. 81.
3 Central Trust Co. v. Chicago Audi-torium Association, 240 U. S. 581, L. R. A. 1917B, 580, 60 L. ed. 811; Walsh v. Fisher, 102 Wis. 172, 72 Am. St. Rep. 805, 43 L. R. A. 810, 78 N. W. 437; Modern Steel Structural Co. v. English Construction Co., 120 Wis. 31, 108 N. W. 70.
4 Fry v. Miles, 71 N. J. L. 293, 50 Atl. 246.-
5 See Sec. 2687.
6 See Sec. 2688 et seq.
7 Measures Brothers, Ltd., v. Measures , 2 Ch. 248 [affirming (1910), 1 Ch. 336].
8 Walsh v. Fisher, 102 Wis. 172, 72 Am. St. Rep 865, 43 L. R. A. 810, 78 N. W. 437.
9 Davis v. Ford, 81 Md. 333, 32 AtL 280; Reichenbach v. Sage, 13 Wash. 364, 52 Am. St. Rep. 51, 43 Pac. 354; Modern Steel Structural Co. v. English Construction Co., 129 Wis. 31, 108 N. W. 70.
10 Davis v. Ford, 81 Md. 333, 32 AtL 280. (In this case, however, "the con-tractor made no bona fide effort to perform his contract with the materialman.) Modern Steel Structural Co v. English Construction Co., 129 Wis. 31, 108 N. W. 70.
11 Reichenbach v. Sage, 13 Wash 364, 52 Am. St. Rep. 51, 43 Pac. 354. (Due to the severity of the weather.)
12 Davis v. Ford, 81 Md. 333, 32 Atl. 280.
13 Hanson v. Smith, 94 Fed. 960, 36 C. C. A. 581.
14 Meyer v. Estes, 164 Mass. 457, 32 L. R. A. 283, 41 N. E 683.
15 Puget Sound Tron & Steel Works v. Ciemmons, 32 Wash. 36, 72 Pac. 465.
16 Douglas v. Lowell, 194 Mass. 268,
80 N. H. 510.
To be distinguished from cases referred to in this section are cases where one party in effect only contracts to arrange with third persons to complete the performance for the benefit of the adversary party. Of such nature are the contracts of carriers, who are to carry over their own line and deliver to a connecting car-rier. On doing this, they are not liable for any default of the connecting carrier.18 A vendor was to ship "within thirty days by sail or steam at seller's option." It was held that he had performed by delivering in good faith to a vessel bound to clear in such time, though for lack of a full cargo it did not in fact do so.19
On the other hand, the fact that the transaction has resulted in loss to the party seeking relief does not establish the fact of breach.20 Thus A agreed to raft lumber for X, and A employed B to do the work under A's orders. B performed according to A's orders. The work was not completed in time to perform A's contract with X, and X recovered a judgment against A for breach. 'These facts gave A no right of action against B.21 It has been held that' a contract to give instruction as to the method of cultivating sugar beets is not broken if improper instructions are given through honest mistake of judgment, as long as there is no fraud or gross ignorance.22