In some interesting cases arising from the postponement of the great coronation processions and naval review in 1902, the English courts held that money paid in advance for the use of rooms or the hiring of boats for the purpose of viewing the processions or review, was not recoverable:

Chandler v. Webster, [1904] 1K.B. 493: Action to recover 100 paid in advance on account of rent of room hired "to view the first coronation procession on June 26, 1902." Collins, M.R. (p. 499): "The plaintiff contends that he is entitled to recover the money which he has paid on the ground that there has been a total failure of consideration. He says that the condition on which he paid the money was that the procession should take place, and that, as it did not take place, there has been a total failure of consideration. That contention does no doubt raise a question of some difficulty, and one which has perplexed the Courts to a considerable extent in several cases. The principle on which it has been dealt with is that which was applied in Taylor v. Caldwell [3 B. &. S. 826], - namely, that, where, from causes outside the volition of the parties, something which was the basis of, or essential to the fulfillment of the contract, had become impossible, so that, from the time when the fact of that impossibility has been ascertained, the contract can no further be performed by either party, it remains a perfectly good contract up to that point, and everything previously done in pursuance of it must be treated as rightly done, but the parties are both discharged from further performance of it. If the effect were that the contract were wiped out altogether, no doubt the result would be that money paid under it would have to be repaid as on a failure of consideration. But that is not the effect of the doctrine; it only releases the parties from further performance of the contract. Therefore the doctrine of failure of consideration does not apply. The rule adopted by the courts in such cases is, I think, to some extent an arbitrary one, the reason for its adoption being that it is really impossible in such cases to work out with any certainty what the rights of the parties in the event which happened should be. Time has elapsed, and the position of both parties may have more or less altered, and it is impossible to adjust or ascertain the rights of the parties with exactitude. That being so, the law treats everything that has already been done in pursuance of the contract as validly done, but relieves the parties of further responsibility under it." l

In the opinion just quoted, two reasons for denying restitution are advanced. The first, which is admitted to be an arbitrary one, is that in cases of the class of Taylor v. Caldwell, in which the parties are excused from further performance, the contract nevertheless continues to be "a good and subsisting contract with regard to things done," and to permit a recovery would be to fly directly in the face of such a contract. This, it is respectfully submitted, is a strange doctrine - that what was originally a contract for the payment of 141 in return for the use of a room, becomes upon the happening of an event which makes its complete performance impossible, "a good and subsisting contract" for the payment of 100 in return for nothing. The second reason, which is evidently regarded as explaining and supporting the arbitrary first one, is that it is impossible in such cases accurately to adjust the rights of the parties. "Time has elapsed," said the court," and the position of the parties may have been more or less altered." It is true, of course, that the position of the parties may in some cases be so altered as to make restitution unjust; but it is believed that proof of such a change of position should be required to defeat a recovery.2

If the result reached by the court is to be upheld, the strongest ground would seem to be that in view of the nature of the contract and of the fact that the plaintiff paid in advance, he should be regarded as having voluntarily assumed the risk of postponement; such assumption of risk, as heretofore explained (ante, Sec. 16), being incompatible with misreliance on the contract.1

1 Accord: Civil Service Coop. Society v. General Steam Nav. Co., [1903] 2 K. B. 756; Blakely v. Muller and. Hobson v. Pattenden, [1903] 2 K. B. 760, n.

2 In commenting on these cases, the learned editor of the Law Quarterly Review said (20 Law Quart. Rev. 3) : "We doubt whether the resources of the Common Law were not, at one time, capable of a nearer approximation to perfect justice; but the Court of Appeal has fixed the rule, and such cases are not very common, and it is always open to parties to protect themselves by insurance or by special terms in the contract itself."

1 See 17 Harv. Law Rev. 199.