Sec 297

With regard to subsequent impossibility the main question is, whether or no the impossibility is imputable to the promisor's misconduct. If there be no such imputability, the promisor, as will be hereafter seen, is not liable.4 Subsequent impossibility, also, may be either temporary or permanent, partial or absolute.5 By the Roman law, liability ceases when the particular thing promised in the obligation becomes without fault impossible. "Quod nullius esse potest, id ut alicujus fieret, nulla obligatio valet efficere."6

Original impossibility may be either subjective or objective; may be temporary or permanent; may be partial or absolute.

Subsequent impossibility may be either culpable or non-culpable; temporary or permanent; partial or absolute.

1 For illustrations, see infra, sec 298 et seq.; Windscheid, Pandekt. sec 264, where are cited a series of authorities from the Roman law establishing these distinctions. In Koch's Forderungen, ii. sec 107, it is stated in general terms, that if the act is itself objectively impossible, no obligation arises, but that the promisor is liable when either the impossibility is purely subjective, dependent upon his own incapacity, or when he brings about by his own act an objective impossibility. The subject is discussed with great fulness and subtlety by Mommsen, in his treatise on Die Unmoglichkeit der Leistung (1853) (pp. 420), to which numerous references will be made in this chapter. 2 Infra, sec 331.

3 Infra, sec 330.

4 Infra, sec 308 et seq.

5 Infra, sec 330-1; Trest v. Orono, 26 Me. 217: see Woodward v. Cowing, 13 Mass. 216; Colville v. Besly, 2 Denio, 139; Murray v. Carrot, 3 Call, 373; Wharton v. O'Hara, 2 Nott. & McC. 65.

6 L. 182, D. de R. J. (50, 17).

When the thing to be done is specifically limited, and this becomes impossible, an equivalent cannot be called for. The rule is tersely expressed by Celsus:1 "Impossibilium nulla obligatio." The meaning of the rule, so argues Mommsen,2 is clear, if limited to unilateral obligations to do a single thing. The whole duty in such cases falls away when impossibility intervenes. According to Puchta,3 obligations, in this relation, are to be divided as follows: - 1. Obligations which are specifically contracted, being immediately contemplated by the parties. - 2. Obligations which take their origin from an act of the parties, without being expressly designed. Under this head fall the obligations of an agent incidental to the assumption of the agency. - 3. Obligations which originate in a condition, such as joint ownership. - With regard to the first, viz., obligations specifically contracted, the primary inquiry is, whether, at the time of the contract, the parties knew of the impossibility. If they did, the whole transaction is inoperative.4 It is otherwise, however, when the promisee was at the time ignorant of the impossibility.5

Sec 298

Suppose the thing contracted for did not exist at the time of the agreement, are the parties bound ? If they were ignorant of such non-existence, not only cannot specific performance be required, but a binding contract cannot be said to have been consummated.6 This is the rule where the thing bargained for never existed;7 and where, having existed, it was destroyed at the time of the agreement.8 "The assent of the parties, being founded on a mutual mistake of fact, was really no assent."9 This has been held to be the case where A. sold B. a cargo of goods which, at the time of the bargain, had been lost at sea, neither party being aware of the fact.1 Bankrupty of a corporation, also, unknown at the time by vendor and purchaser of certain of its shares, will be a defence to a suit on the con-tract of purchase;2 and so of an agreement to take shares in a company which has no power to issue such shares;3 and of an agreement to sell a horse which (neither party knowing the fact) is, at the time of the bargain, dead.4 It has also been ruled that where a party holding an estate for another's life, agrees to sell his interest in such estate in ignorance that such other person is at the time dead, the agreement is void;5 and that an expired life insurance of a deceased person is not revived by the paying and receiving, after his death, by the insurers, of a premium, the party paying and the party receiving being, at the time, ignorant of the death.6 But a specific agreement to pay rent is not vacated by the fact that the property leased turns out, without fault of the lessor, of far less value than was supposed. This, as is elsewhere seen, is the case with leases of improved land when the improvements have been destroyed by fire;7 and the same rule is applied to leases of mines when the mine turns out to be unworkable, which, if there be a lease covenanting to pay a fixed rent, is no defence to the covenant.8 On the other hand, when rent is payable in the shape of a royalty on minerals in the soil, no royalty is payable when no minerals are found. And a covenant to work a mine cannot be enforced if it turn out that the mine is exhausted.1 Where an insurance was effected on certain goods on a particular ship, and there were no such goods on board that ship, it was held that the premium might be recovered back.2 And when a thing sold is absolutely valueless at the time of sale, this avoids the contract.3 But when the consideration has been in part received, but its full reception made impossible by casus, the price paid cannot be recovered back.4 Non-existence at the time of sale, it should be remembered, is no defence when the party insures the production of the thing at the time of the delivery;5 and when the thing has "a potential existence, that is, things which are the natural product or expected increase of something already belonging to the vendor."6 Hence, a lessee may convey to a lessor all the crops which may be grown on the leased land during the term, and no delivery of the crops after they are harvested is necessary even against attaching creditors.7 A sale of a colt to be hereafter foaled from a certain mare is valid even against creditors of the owner.8

Non-existence of thing at time is a defence.

1 L. 185, D. de R. J, (50, 17).

2 Op. cit. 103.

3 Pandekten, sec 249.

4 See infra, sec 301; and see an illustration of this in L. 31, D. de 0. et A. (44, 7).

5 Infra, sec 303.

6 Supra, sec 181 et seq.

7 Hills v. Sughone, 15 M. & W. 253; Clifford v. Watts, L. R. 5 C. P. 577;.

Allen v. Hammond, 11 Pet. 63, 71; Thompson v. Gould, 20 Pick. 139; Rice v. Dwight Man. Co., 2 Cush. 80, 86; Franklin v. Long, 7 Gill & J. 407; Walker v. Tucker, 70 111. 527.

8 Hitchcock v. Giddings, 4 Price, 135; Rice v. Man. Co., 2 Cush. 80; Marvin v. Bennett, 8 Paige, 312.

9 Benj. on Sales, 3d Am. ed. sec 77.

1 Hastie v. Couturier, 9 Exch. 102; Couturier v. Hastie, 5 H. L. C. 673; see Gibson v. Pelkie, 37 Mich. 380.

2 Emerson's case, L. R. 1 Ch. 433; Pollock, Wald's ed. 425, citing explanation in L. R. 3 Ch. 291, by Page Wood, L. J.

3 Bank of Hindustan v. Alison, L. R. 6 C. P. 54, 222; Alison ex parte, L. R. 15 Eq. 394; 9 Ch. 1; Campbell ex parte, L. R. 16 Eq. 417; 9 Ch. 1.

4 1 Story Eq. Jur. sec 143; Pothier, Cont. de Vente, sec 4, cited Couturier v. Hastie, 5 H. L. C. 673.

5 Strickland v. Turner, 7 Ex. 208; Hitchcock v. Giddings, 4 Price, 135; Cochrane v. Willis, L. R. 1 Ch. 58; see Jones v. How, 9 C. B. 1; Coates v. Collins, L. R. 7 Q. B. 144; see supra, sec 181-8.

6 Pritchard v. Ins. Co., 3 C. B. N. S. 622. Mr. Wald (Wald's Pollock, 427) cites to same effect, Mutual Insurance Co. v. Ruse, 8 Ga. 534. With the cases in the text may be grouped Allen v. Hammond, 11 Pet. 63, where it was held that an agreement with an attorney to prosecute, for a percentage, a claim against a foreign government, would be vacated when it turned out that at the time of the agreement the claim had been allowed.

7 Infra, sec 318.

8 Bute v. Thompson, 13 M. & W. 487; Ridgway v. Sneyd, Kay, 627.

1 Ridgway v. Sneyd, Kay, 627; Clifford v. Watts, L. R. 5 C. P. 577; Walker v. Tucker, 70 111. 527.

2 Hammond v. Allen, 2 Sumn. 396; Park on Ins. 6th ed. 1809. As to recovery back, see generally infra, sec 742 el seq.

3 Leger v. Bonnaffe, 2 Barb. 475; infra, sec 742-4.

4 Infra. sec 745.

5 Infra, sec 311.

6 Benj. on Sales, 3d Am. ed. sec 78; Robinson v. Macdonnall, 5 M. & S. 228; Smith v. Atkins, 18 Vt, 461; Hodges v. Harris, 6 Pick. 360; Lewis v. Lyman, 22 Pick. 437; Lucas v. Birdsey, 41 Conn. 357; Capron v. Porter, 43 Conn. 389; Heald v. Ins. Co., 111 Mass. 38; Sanborn v. Benedict, 78 111. 309; Cotten v. Willoughby, 83 N. C. 75.

7 Bellows v. Wells, 36 Vt. 599. •.

8 Hull v. Hull, 48 Conn. 250; Fon-ville v. Casey, 1 Murph. N. C. 389. In Hull v. Hull, ut supra, the court said: "It is well settled that a valid sale may be made of the wine a vineyard is expected to produce, the grain that a field is expected to grow, the milk that a cow may yield, or the future young born of an animal. 1 Pars, on Cont. (5th ed.) 523, note k, and cases there cited; Hilliard on Sales, sec 18; Story on Sales, sec 186. In Fonville v. Casey, 1 Murphy N. C. 389, it was held that an agreement for a valuable consideration to deliver to the plaintiff the first female colt which a certain mare, owned by the defendant, might produce, vests a property in the colt in the plaintiff, upon the principle that there may be a valid sale where the title is not actually in the grantor, if it is in him potentially, as being a thing accessory.