Sec 311

If a party guarantees against an event, he cannot defeat a suit for damages for non-performance on the ground that the event happened.7 Thus, where a charterer undertakes to unload within a particular time, it is no defence to a suit for a breach of contract in this respect that he was prevented by a storm which was within the ordinary range of anticipation at the time of his contract.8 It is no defence, also, to a suit on a charter party requiring a ship to be loaded with usual dispatch, that a frost stopped transit through a canal by means of which the cargo would in the ordinary course of travel have been brought to the ship;9 nor is the burning of a house under construction any defence to a suit against the contractor for non-construction.10 Nor can the promisor defend himself on the ground that there was an accumulation of unforeseen difficulties in his way which either absolutely prevented his performance of his contract, or made its performance possible only at a ruinous sacrifice.1 And where a freighter undertakes specifically that he will not detain a ship beyond a designated period, he becomes liable for damages, although the delay may have been caused by events beyond his control and without any fault.2 And a contractor cannot set up as a defence to a suit on his contract to have a particular building ready at a particular time, that it was destroyed when near completion by lightning.3 " The act of God will excuse the not doing of a thing where the law had created the duty, but never where it is created by the positive and absolute contract of the party."4 This is eminently the case in contracts where there is a deliberate election to take certain risks,5 as in insurance cases;6 and in charter parties and contracts of carriage;1 and when the promisor by due diligence could have made himself acquainted with a defect in the materials which he was to use which made performance impossible, this impossibility is no defence.2 - "Where a party has either expressly or impliedly undertaken without any qualification to do anything, and does not do it, he must make compensation in damages, though the performance was rendered impracticable by some unforeseen cause over which he had no control."3 - Another illustration of the principle before us may be found in a case decided in Michigan in 1880. S. agreed to locate and enter pine lands in the name of A. & P. to an amount not exceeding 10,000 acres, they to pay him expenses, and to convey to him an undivided fifth in the land located and entered. The panic of 1873 intervening, A. & P. were Nor a defence when the risk is one the promisor took.

Co.r Reeves, 10 Wall. 176; Denny v. R. R., 13 Gray, 481; Morrison v. Davis, 20 Penn. St. 171; Bain v. Lyle, 58 Penn. St. 68; Morrow v. Campbell, 7 Port. 41; Selden v. Preston, 11 Bush, 191; McEvers v. Steamboat, 22 Mo. 189.

1 Crosby v. Fitch, 12 Conn. 410; Bowman v. Teall, 23 Wend. 306; Swetland v. R. R., 102 Mass. 276.

2 McPadden v. R. R., 44 N. Y. 478.

3 Williams v. Grant, 1 Conn. 487.

4 Siordet v. Hall, 4 Bing. 607; 1 M. & P. 561.

5 Wing v. R. R., 1 Hilton, 235.

6 See other cases in Wh. on Neg. sec 559.

7 See Leake, 2d ed. 697; Jones v. St. John's College, L. R. 6 Q. B. 115; School Dist. v. Dauchy, 25 Conn. 530; Tompkins v. Dudley, 25 N. Y. 272; Baker p. Johnson, 42 N. Y. 126; Clancy v. Overman, 1 Dev. & B. 402.

8 Thiis v. Byers, L. R. 1 Q. B. D. 244.

9 Kearon v. Pearson, 7 H. & N. 386. 10 Adams v. Nichols, 19 Pick. 275.

1 Bullock v. Dommit, 6 T. R. 650; Atkinson v. Ritchie, 10 East, 530; Thorn v. City of London, L. R. 1 Ap. Ca. 120; Jones v. U. 8., 96 U. S. 24; Dermott v. Jones, 2 Wall. 1; Gilpins v. Conseqna, Pet. C. C. 86; Eddy v. Clement, 38 Vt. 486; Adams v. Nichols, 19 Pick. 275; Mill Dam Foundry v. Hovey, 21 Pick. 441; Bigelow v. Col la-more, 5 Cush. 231; Lord v. Wheeler, 1 Gray, 282; Kramer v. Cook, 7 Gray, 550; Wareham Bk. v. Burt, 5 Allen, 113; Wells v. Calnan, 107 Mass. 514; Thomas v. Snowies, 128 Mass. 22; Beebe v. Johnson, 19 Wend. 500; Harmony v. Bingham, 2 Kern, 107; Tompkins v. Dudley, 25 N. Y. 275; Dexter v. Norton, 47 N. Y. 62; Booth v. Mill Co., 60 N. Y. 489; Kemp v. Ice Co., 69 N. Y. 45; Wheeler v. Ins. Co., 82 N. Y. 543; School Trustees v. Bennett, 3 Dutch. 515; Anspach v. Bast, 52 Penn. St. 356; Lovering v. Coal Co., 54 Penn. St. 291; Peterson v. Edmonson, 5 Harring. 378; Kribs v. Jones, 44 Md. 396; Linn v. Ross, 10.

Ohio, 412; Wood v. Long, 28 Ind. 314; Brumby v. Smith, 3 Ala. 123; Davis v. Smith, 15 Mo. 467; Duncan v. Gibson, 45 Mo. 352; Wilson v. Knott, 3 Humph. 473; Peck v. Ledwidge, 25 111. 112; and see cases cited Wald's Pollock, 356; and infra, sec 321.

2 Randall v. Lynch, 2 Camp. 352; 12 East, 179; Thiis v. Byers, L. R. 1 Q. B. D. 249; Straker v. Kidd, L. R. 3 Q. B. D. 223.

3 School District 0. Dauchy, 25 Conn. 530.

4 Ibid., per Ellsworth, J.; see limitations, infra, sec 314 et set].

5 Castle v. Playford, L. R. 7 Ex. 98; Martineau v. Kitching, L. R. 7 Q. B. 436.

6 Brown v. Ins. Co., 1 E. & E. 853; Medeiros v. Hill, 8 Bing. 231; Tuf-nell v. Constable, 7 Ad. & El. 798; Adams v. Nichols, 19 Pick. 275; Baker v. Ins. Co., 12 Gray, 603; Brown v. Kimball, 12 Vt. 617; Martin v. Schoen-berger, 8 W. & S. 367. As to guarantees, see infra, sec 311.

1 Leake, 2d ed. 697; Shubrick v. Salraond, 3 Burr. 1637; Kearon v. Pearson, 7 H. & N. 386; Jones v. Adamson, L. R. 1 Ex. D. 60; and cases cited, Wh. on Neg. sec 550; infra, sec 317.

2 Dermott v. Jones, 2 Wall. 1; see Hills v. Sughrue, 15 M. & W. 253. In Thorn v. Mayor of London, L. R. 9 Ex. 163; L. R. 10 Ex. 112; L. R. 1 App. Cas. (H. of L.) 120, the engineer of the city of London prepared certain specifications in a contract which the plaintiff undertook to execute, but which, when the work was in the course of performance, were found to contain impracticable conditions. The contractor sued the city for the loss he had incurred in his attempt to fill what turned out to be an impossible undertaking, but it was held, both in the Exchequer Chamber and the House of Lords, that the risk was one which he himself assumed.

In Bailey v. De Crespigny, L. R. 4 Q. B. 185, the court said: "There can be no doubt that a man may by an absolute contract bind himself to perform things which subsequently become impossible, or to pay damages for the non-performance, and this construction is to be put upon an unqualified undertaking, where the event which causes the impossibility was or might have been anticipated or guarded against in the contract, or where the impossibility arises from the act or default of the promisor. But where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens." See, further, White v. Mann, 26 Me. 361; Lord v. Wheeler, 1 Gray, 282; Carpenter v. Stevens, 12 Wend. 589; Harmony v. Bingham, 2 Kernan, 106; Scully v. Kirkpatrick, 79 Penn. St. 324; Clark v. Franklin, 7 Leigh, 1; Brumby v. Smith, 3 Ala. 123.

3 Per cur. Ford v. Cotesworth, L. R. 4 Q. B. 134; Leake, 2d ed. 693. To same effect is Harmony v. Bingham, 2 Kernan, 106. unable to furnish funds. It was held that the panic was a risk they took, and was no defence to them when sued on their contract.1 - Insanity of the insured, by which payment of premiums is dropped, does not prevent the forfeiture of the policy conditioned on such payment.2 - It should also be remembered, as we will see hereafter, that personal casus is no excuse when the condition can be performed by a substitute or an attorney.3.