6 Armstrong v. Toler, 11 Wheat. 258; Story, Confl. Laws, § 250; Clugas v. Penaluna, 4 T. R. 466; Holman v. Johnson, 1 Cowp. 344.
§ 585. Where the consideration is illegal, either party may. take advantage of this circumstance to avoid his contract. For the law allows the guilty party to take advantage of the illegality of his own act, not with a view of conferring a benefit on him, but upon grounds of public policy.1 And an executed contract subsequently made, and inconsistent with the illegal contract, is equivalent to a repudiation of it.2 This subject is intricately interwoven with the subject of Illegal Contracts, and the reader is referred to that title in the present treatise, for a more extended consideration of it.
§ 586. A contract founded upon an impossible consideration is void; for the law will not compel a man to attempt to do that which is not within the limits of human capacity. Lex neminem cogit ad vana aut impossibilia.3 But he will not be excused if the intention of the parties can be substantially performed.4 A consideration may be impossible either in fact or in law; 5 that is, it may be impossible for the party physically to perform it, - as if he promise to go from Westminster to Rome in three hours; or it may not be within his legal capacity, as if he promise to discharge a party of a debt due to a third person, without the authority of such third person.6 Thus, where a friend of a bankrupt promised to pay his assignees all such sums as the bankrupt had received on a certain partnership account, and had not accounted for, in consideration that they would engage on their part to forbear and desist from taking an examination before the commissioners in reference to such sums, and that the commissioners would also forbear and desist from such examination, the promise was held to be void, partly upon the ground that it was in violation of the legal duty of the commissioners and of the assignees, and partly upon the ground that it was not within the legal power of the assignees to prevent an examination by the commissioners. Lord Kenyon, in that case, said: "The ground on which I found my judgment is this,- that every person, who, in consideration of some advantage either to himself or to another, promises a benefit, must have the power of conferring that benefit up to the extent to which that benefit professes to go; and that not only in fact, but in law."1
1 Holman v. Johnson, 1 Cowp. 343; Mackey v. Brownfield, 13 S. & R. 241, 242; Griswold v. Waddington, 16 Johns. 486; Langton v. Hughes, 1 M. & S. 593; Josephs v. Pebrer, 3 B. & C. 639; 2 Kent, Comm. 467.
2 Lafferty v. Jelley, 22 Ind. 471 (1864).
3 1 Powell on Cont. 160 to 164 (ed. 1790); ib. 178, 179.
4 White v. Mann, 26 Me. 361.
5 Nerot v. Wallace, 3 T. R. 17.
6 Harvy v. Gibbons, 2 Lev. 161. This is a case where the defendant promised to repair the plaintiff's barge, in consideration that the plaintiff would discharge him from a debt of twenty pounds due to a third person; and judgment for the plaintiff was reversed by the King's Bench, on the ground that the plaintiff could not discharge a debt due to another. See also Bates v. Cort, 2 B. & C. 474.
§ 587. This rule does not, however, extend to contracts founded upon difficult, improbable, or contingent considerations; for it is the duty of the promisor well to weigh the difficulty or improbability of his consideration, before he binds himself to perform it; and the law will not help him to avoid duties which he has deliberately imposed upon himself, so long as they are per se possible.1 And even if a man contract to do something which is at the time impossible in fact, but not impossible in its nature, he is liable in damages for a breach of contract for non-performance. Thus, it will be no excuse for the non-performance of an agreement to deliver goods of a certain quality, that they could not be obtained at the particular season when the contract was to be executed.3 So, also, a covenant by a tenant to repair is binding, although the premises occupied by him be destroyed by fire. So, also, the sickness and consequent inability of a party to perform his contract is no excuse, because he should have guarded against such a contingency.1 But in a contract for the performance of manual labor, for a stipulated time, requiring health and strength, an actual inability to perform the labor, arising from sickness, at the commencement of the time, though not continuing through the whole time, will excuse performance.2 So, also, if a person undertake to deliver goods at a particular place, without limitation of his liability in case of loss or injury, and they be destroyed on the way, he is responsible for the loss.3
1 Nerot v. Wallace, 3 T. R. 17. It has been held to be no valid defence to an action upon a note given before the rebellion for the price of slaves, warranted to be slaves for life, that by the results of the war the slaves became free. Wilkinson w. Cook, 44 Miss. 367 (1870); Loggins v. Buck, 33 Tex. 113 (1870).
2 Co. Litt. 206 a; Tufnell v. Constable, 3 Nev. & Per. 47; s. c. 7 Ad. & El. 798; Izon v. Gorton, 5 Bing. N. C. 501; s. c. 7 Scott, 537; Stockwell v. Hunter, 11 Met. 448; Brecknock Co. v. Pritchard, 6 T. R. 750. See post, Landlord and Tenant; Piatt on Cov. 569; Blight v. Page, 3 Bos. & Pul. 296, note; Worsley v. Wood, C T. R. 718, 719; Huling v. Craig, Addison, 342; 1 Powell on Cont. 160 to 164 (ed. 1790).
3 Gilpins v. Consequa, Peters, C. C. 91; Youqua v. Nixon, Peters, C. C. 221; Fischel v. Scott, 15 C. B. 69; 28 Eng. Law & Eq. 404. See post, Defence, Performance. Paradine v. Jane, Aleyn, 26; Atkinson 0. Ritchie, 10 East, 533; Hadley v. Clarke, 8 T. R. 259; Beswick v. Swindells, 3 Ad. & El. 883; 2 Black. Comm. 340; Hall v. Wright, El. B. & E. 746; Taylor v. Caldwell, 3 B. & S. 826 (1863).
§ 588. A man may by apt words bind himself that it shall rain to-morrow, or that he will pay damages.4 A contract to do what is impossible in fact to be done, may nevertheless be binding.5 A contract to deliver to A. at a future day, in good working order, a steam saw-mill, situated on land conveyed to A., is not excused because the boiler accidentally explodes before that day, though without the fault of the obligor.6 So, if A. contracts to build a house for another on the latter's land, and complete it ready for use and occupation, he is bound to do so, although, from a latent defect in the soil, the walls crack and settle, and it becomes dangerous and unfit for occupation before it is completed, and the owner is compelled to take it down and rebuild.7 If a policy of insurance positively requires, as a condition precedent, that notice should be given of the calamity within seven days after its occurrence, the fact that instantaneous death makes it impossible to give such notice furnishes no excuse.8 But if a party by his own act renders performance impossible on the part of the other, the latter is excused.1 So, an impossibility arising from an act of the legislature subsequent to the contract discharges the contractor from liability.2 But the mere fact that performance of a contract has been rendered more burdensome and expensive, but still not impossible, by a law enacted after it has been made, never excuses a party.3 Thus, if a vendor of slaves warrants that they are slaves for life, and the Constitution of the State subsequently emancipates all slaves, the vendee is still bound to pay the whole purchase-money.4 i Public agents do not bind their principals, if they act without authority, although within the general scope of their promise.5 In a late case in the Exchequer Chamber, it was held by four judges against three, that if a man, after making a contract to marry, became afflicted with a disease causing bleeding at the lungs, so that he became "incapable of marriage without great danger of his life, and therefore unfit for the married state," this was no excuse for refusing to marry, and he was held liable to an action.6 But a contract for personal service, like that of an apprenticeship, is released by the permanent illness or death of the apprentice; although the covenant be absolute on the father's part that the covenants shall be performed.7 Temporary illness, it seems, of a servant employed for a term of years, does not justify the master in dismissing the servant, nor always suspend the right of the servant to recover wages during such temporary illness.8
1 Alexander v. Smith, 4 Dev. 364.
2 Dickey v. Linscott, 20 Me. 453.
3 Thomson v. Miles, 1 Esp. 184. See post, Bailments; Story on Bailm. § 36; Paradine v. Jane, Aleyn, 26, 27.
4 Maule, J., in Canham v. Barry, 15 C. B. 619.
5 Clifford v. Watts, Law R. 5 C. P. 577 (1870), commenting on Marquis of Bute v. Thompson, 13 M. & W. 487; Hills v. Sughrue, 15 M. & W. 253; Barker v. Hodgson, 3 M. & S. 267; Taylor v. Caldwell, 3 B. & S. 826.
6 Wood v. Long, 28 Ind. 314.
7 Dermott v. Jones, 2 Wall. 1 (1864); School Trustees v. Bennett, 3 Dutch. 515. And see Brumby v. Smith, 3 Ala. 123; Adams v. Nichols. 19 Pick. 275.
8 Gamble v. Accident Assurance Co., Irish R. 4 C. L. 204 (1869).
§ 589. Where, however, a contract, not impossible in its inception, afterwards becomes impossible to be performed, a court of equity will relieve against the performance, if no injury be thereby done to the party claiming that it shall be performed; and courts of equity will interfere to prevent the enforcement of contracts for the purpose of harassment and vexation.1 But on the question of executing an agreement, hardship alone cannot be regarded as a sufficient ground of relief, unless it amount to so great a degree of inconvenience and absurdity as to afford judicial proof that such an agreement could not have been intended by the parties.2
1 Malone v. Dockrill, Irish R. 3 C. L. 561 (1869). 2 Baily v. De Crespigny, Law R. 4 Q. B. 186 (1869).
3 Baker v. Johnson, 42 N. Y. 126 (1870).
4 Haskill v. Sevier, 25 Ark. 152 (1867); Willis v. Halliburton, 25 ib. 173; Jacoway v. Denton, 25 ib..625 (1869).
5 Parsel v. Barnes, 25 Ark.261 (1868).
6 Hall v. Wright, El. B. & E. 746 (1858). Interesting opinions are given on both sides of this question.
7 Boast v. Firth, Law R. 4 C. P. 1 (1868). And see Taylor v. Caldwell, 3 B. & S. 826, distinguishing Hall v. Wright, El. B. & E. 746.
8 Cuckson v. Stones, 1 El. & El. 248 (1859). And see Harmer v. Cornelius, 5 C. B. (n. s.) 236.