indicate that he does not assume this risk.15 And the rule is general that purely subjective impossibility is immaterial, 16 except to the extent that the principle is qualified by what is hereafter stated of the effect of failure of the contemplated means of performance. 17 § 1933. Existing and supervening impossibility. Performance of a promise may be impossible at the time the promise was made, or it may become impossible because of supervening circumstances. If the impossibility exists at the time when the contract was made it may be supposed that one or both parties were aware of the fact or that neither was aware of it. It is sometimes said that if the agreement is impossible in itself, it is void. 18 This, however, does not seem necessarily true. Doubtless if the the parties know of the imposibiity they will not make such an agreement. Merely going through a form of words which they know can mean nothing, will not make a contract, 19 but by mistake it may well happen that parties execute a writing as their contract which contains a provision impossible of performance.20 If it is said the transaction is necessarily void, reformation never will be possible; yet it seems that a case might well be supposed where reformation of such a contract would be appropriate. In disregarding a plainly expressed provision of a contract because it is repugnant to a more vital clause, courts are, it seems, under the guise 15 In a contract of apprenticeship the promise of the master to instruct is excused by the wilful refusal, Raymond v. Minton, L. R. 1 Exch. 244, or total incapacity, Clancy v. Overman, 1 Dev. & B. 402, of the apprentice to learn. See also Barger v. Caldwell, 2 Dana, 129; Wright v. Brown, 5 Md. 37; Wyatt v. Morris, 2 Dev. & B. 108. 16 Fenwick v. Schmalz, L. R. 3 C. P. 313; Lind v. United States, 44 Ct. Cl. 558; Jones v. Anderson, 82 Ala. 302, 2 So. 911; Klauber v. San Diego &c. Co., 95 Cal. 353, 30 Pac. 555; Wilson v. Alcatraz Asphalt Co., 142 Cal. 182, 75 Pac. 787; Potts Drug Co. v. Benedict, 156 Cal. 322, 333, 104 Pac. 432, 25 L. R. A. (N. S.) 609; Dexter &c. Paper 17 See infra, § 1951. 18 See Wald's Pollock, Contracts, 3d Am. ed. 520. 19 See supra, § 21. 20 In Le Roy v. Jakobosky, 136 N. C. 443, 48 S. E. 796, 67 L. R. A. 977, the parties entered into a contract on April 28th to convey land on April 23d of the same year. of construction really reforming an impossible agreement.21 Existing impossibility known to one party and not to the other would probably render the transaction voidable for fraud.22 If unknown to both parties there is little occasion to distinguish existing impossibility from supervening impossibility. Parties deal with unknown present situations on the same basis as future contingent occurrences, and the law of contracts should adopt this method of dealing with them.23 There is, therefore, no more difficulty in finding a binding contract to perform something in fact impossible from the outset, if the facts or their import are unknown to the parties, than there is in making a contract in which a promisor takes the risk of supervening impossibility.24 It may also happen that parties know all the facts, but erroneously believe known difficulties can be removed. Such an agreement will generally be made on the assumption that the difficulties are not insuperable and if they prove to be so (not merely because of a promisor's subjective 21 See Fitch v. Jones, 5 E. & B. 238; Cameron v. White, 74 Wis. 425, 43 N. W. 155, 5 L. R. A. 493. 22 See supra, §§ 1497, 1548. 23 See infra, § 1963. 24 Cases of existing impossibility unknown to the parties, except those based on broken warranties are not very numerous. The most frequent are those where land does not contain the amount of ore which a lessee agrees to mine. See supra, § 1567. There are a few other illustrations in the books. In Thornborow v. Whitacre, 2 Ld. Ray. 1164, the court considered a promise to deliver two grains of rye on Monday, and on each alternate Monday thereafter, four, eight, etc., grains in geometrical ratio. Lord Holt, said that the promise was "only impossible with respect to the defendant's ability;" though it was suggested that "all the rye in the world was not so much." There was no judgment rendered. In Beebe v. Johnson, 19 Wend. 500, 32 Am. Dec. 518, the defendant agreed to secure in England a patent giving the exclusive right of selling the patented article in Canada. At the time the contract was made such a privilege could not be granted in England, but only in Canada. The court, nevertheless, held the defendant liable. In Reid v. Alaska Packing Co., 43 Oreg. 429, 73 Pac. 337, a contract was made to sell salmon packed in Alaska "exactly like Puget Sound fancy Sockeye." The promisor was held liable, though so far as known, fish of that sort are not found in Alaska. The court suggested that the country was incompletely explored and that in any event Sockeye salmon might be imported into Alaska and packed there. See also Bennett v. Morse, 6 Col. App. 122, 39 Pac. 582; Anderson v. Adams, 43 Or. 621, 74 Pac. 215; Stratford Gas Co. v. Stratford, 26 Ont. App. 109. In some of these cases it may be questioned whether the defendant might not have sought rescission of the contract on the ground of mistake. incapacity), there will be no liability. 25 It is obviously possible, however, for a promisor to assume the risk of success. It is ordinarily supervening impossibility that is referred to when the question of impossibility, as a defence to contracts, is considered. § 1934. A promise impossible of performance may be binding. "A man may contract that a future event shall come to pass over which he has no, or only limited power" 26 By apt words he may bind himself that it shall rain to-morrow," and not only is this true of supervening impossibility but a promise may be binding though impossible when made. 28 Indeed such promises are common. A warranty that a certain state of facts exists which in fact does not exist is an illustration. One who warrants that a horse is sound or a ship tight, stanch and strong is promising something impossible if the horse is unsound or the ship leaky; and though a warranty in effect is a promise to pay damages if the facts are not as warranted, in terms it is an undertaking that the facts exist. And in spite of occasional state ments that an agreement impossible in law is void, seems no greater difficulty in warranting the legal possibility of a performance than its possibility in fact, 30 subject to this qualification: If a promisor undertakes to do an act whether it 25 In Anglo-Russian Merchant Traders v. Batt, [1917] 2 K. B. 679, a contract for the sale of aluminium for export was made. Both parties knew that export was prohibited without a license. The seller used diligence in endeavoring to get a license but failed. He was held not liable. In McKenna v. McNamee, 15 Can. S. C. 311, the defendants engaged the plaintiffs as sub-contractors to do certain Government work. As both parties knew, the Government had cancelled its contract with the defendants, but the defendants thought they could secure its reinstatement. They failed in this, but were held not liable to the plaintiffs. 26 Sage v. Hampe, 235 U. S. 99, 104, there 35 S. Ct. 94, 59 L. Ed. 147. So in Jacobs v. Credit Lyonnais, 12 Q. B. D. 589, 603, per Bowen, L. J., "A person who expressly contracts absolutely to do a thing not naturally impossible is not excused for non-performance because of being prevented by vis major." "Canham v. Barry, 15 C. B. 597, 619; Krause v. Board &c. of Crothersville, 162 Ind. 278, 284, 70 N. E. 264, 65 L. R. A. 111, 102 Am. St. Rep. 203. 28 Clifford v. Watts, L. R. 5 C. P. 577; Runyan v. Culver, 168 Ky. 45, 1818. W. 640, L. R. A. 1916 F. 3. 29 See Wald's Pollock. Contracts, 3d ed. 524. 30 See Odlin v. Insurance Co., Wash. C. C. 312. 2 is legal or not, and it is or becomes illegal, the intent manifested to break the law makes the contract illegal and there can be no recovery upon it.31 But there seems no reason of policy forbidding a contract to perform a certain act legal at the time of the contract if it remains legal at the time of performance, and if not legal to indemnify the promisee for non-performance. 32 Supervening impossibility of a kind which usually operates as an excuse will not do so if the terms of the promise indicate that the promisor assumes the risk.33 31 Sage v. Hampe, 235 U. S. 99, 104, 35 S. Ct. 94, 59 L. Ed. 147. 32 In Osborn v. Nicholson, 13 Wall. 654, 20 L. Ed. 689, a warranty that a negro was "a slave for life" made in Arkansas in 1861 was held enforceable after the constitutional prohibition of slavery. See also Smith v. Becker, [1916] 2 Ch. 86, stated infra, § 1938, n. 54. 33 Prince v. Haworth, [1905] 2 K. B. 768, 770; Henderson v. Stone, 1 Mart. (N. S.) 639; Blome v. Wahl-Henius Institute, 150 Ill. App. 164; Finney v. Bennett, 49 N. Y. Misc. 230, 232, 97 N. Y. S. 291; Kingsville Cotton Oil Co. v. Dallas Waste Mills (Tex. Civ. App.), 210 S. W. 832. A contract to make specified machinery was held not excused by the fact that the manufacture would infringe existing patents. E. W. Bliss Co. v. Buffalo Tin Can Co., 131 Fed. 51, 65 C. C. A. 289, cert. denied 195 U. S. 630, 25 S. Ct. 788, 49 L. Ed. 352. In Berg v. Erickson, 234 Fed. 817, 148 C. C. A. 415, the plaintiff, Berg, "was a resident of St. Francis, Tex. He had never had any experience of Kansas grass. He sought pasturing for 1,000 cattle. He went from Texas to Kansas and applied to Erickson for this pasturing. Before the contract was made Erickson showed him the pastures into which he proposed to put the cattle and into which they were subsequently driven. Berg looked at the pastures and made no objection to them. Erickson told him he would guarantee the pastures. After this inspection and conversation Erickson made the contract to furnish plenty of good grass to the cattle during the grazing season of 1913. . . . There was no rain from May until September, but it did not prevent the growth of all grass on the pastures. They produced sufficient to keep the cattle alive, and at the end of the season, when they were taken out in November, they weighed as much as, or even more than, when they were placed in the pastures. . . These facts force the mind to the conclusion that the minds of these contracting parties met in the intention that Erickson should, and that he did, guarantee plenty of good grass for these cattle in these pastures where he put them during the entire grazing season, without exempting or intending to exempt himself from liability in the case of any impossibility of performance that might result from unprecedented drought, fire, or other act of God or accident. It was common knowledge that droughts were not unusual in Kansas. It was common knowledge that they decreased the growth of grass. It was common knowledge that one could not tell by the examination of pastures in Kansas, of which he had no previous knowledge, in the spring of the year before the 1935. Classification of excusable impossibility. Not every kind of impossibility will excuse a promisor from liability for breach of his promise, even though he does not expressly undertake the risk of impossibility. There are, however, three classes of cases where it is well settled that the promisor will be excused unless he either expressly agreed in the contract to assume the risk of performance, whether possible or not, or the impossibility was due to his fault; and there is certainly a fourth class of cases where the defence has sometimes been allowed (and the law seems tending in this direction); and perhaps a fifth class may be added. The three classes first alluded to are, (1) Impossibility due to domestic law; (2) Impossibility due to the death or illness of one who by the terms of the contract was to do an act requiring his personal performance; (3) Impossibility due to fortuitous destruction or change in character of something to which the contract related, or which by the terms of the contract was made a necessary means of performance. The fourth class of cases, to which allusion was made above as standing on more debatable ground, comprises cases where impossibility is due to the failure of some means of performance, contemplated but not contracted for.34 The fifth class does not strictly fall within the boundaries of impossibility. Performance remains entirely possible, but the whole value of the performance to one of the parties at least, and the basic reason recognized as such by both parties, for entering into the contract has been destroyed by supervening accident. There has been but little clear recognition of this |