however, do not meet the situation. There was no defect in the original contract and no fault on the part of the plaintiff. When this is true, illegality, as such, is not a defence.49

Under statutes passed since 1914 because of the war a number of cases of this sort have arisen. Charter parties, 50 contracts to sell or to manufacture goods where the goods or all goods manufactured at the seller's factory are afterwards requisitioned by the government,51 and contracts of other kinds, 52 have been invalidated by statute or executive orders because of the exigencies of war, and the promisors held free from liability for not keeping their contracts. The fact that the promisor himself is active in bringing about the change of the law making performance of his promise impossible is immaterial, since the change must be deemed to have been made for the public good. 53 Here as in other classes of excusable impossibility,

49 See supra, § 1631.

50 Horlock v. Beal [1916] 1 A. C. 486; Scottish Navigation Co., Ltd., v. Souter, [1917] 1 K. B. 222; Earn Line S. S. Co. v. Sutherland S. S. Co., 254 Fed. 126; The Isle of Mull, 257 Fed. 798; The Adriatic, 258 Fed. 902 (C. C. A.).

51 Shipton v. Harrison, [1915], 3 K. B. 676; Lipton v. Ford, [1917], 2 K. B. 647; Moore v. Roxford Knitting Co., 250 Fed. 278. But a voluntary sale to the government affords no excuse. Graves v. Miami S. S. Co., 29 N. Y. Misc. 645, 61 N. Y. S. 115. Nor does an executive order, unless made in conformity with statutory authorization. Mawhinney v. Millbrook Woolen Mills, 105 N. Y. Misc. 99, 172 N. Y. S. 461.

52 Metropolitan Water Board v. Dick, [1917] 2 K. B. 1, [1918] A. C. 119. See also Ertel Bieber & Co. v. Rio Tinto Co., [1918] A. C. 260; Naylor Benzon & Co., Ltd., v. Krainische Industrie Gesellschaft, [1918] 2 K. B. 486. But the fact that a contractor was practically unable to get necessary materials in view of the apportionment of the War Industries Board was apparently thought no excuse in

North Hempstead v. Public Service Corp., 107 N. Y. Misc. 19, 176 N. Y. S. 621.

53 Brown v. Mayor, 9 C. B. (N. S.) 726; Brick Presbyterian Church v. New York, 5 Cow. 538. See also Board of Commissioners v. Young, 59 Fed. 96, 108, 8 C. C. A. 27; Dunham v. New Britain, 55 Conn. 378; Scovill v. McMahon, 62 Conn. 378, 21 L. R. A. 58, 36 Am. St. Rep. 350. This may be otherwise where the change is made by a private Act, Re Companies Acts, 117 L. T. 60, or administrative order. It has been said that the owner has no right to induce the government to requisition a chartered ship. The Isle of Mull, 257 Fed. 798, 802, citing, Chicago & Eastern Ill. R. v. Collins Produce Co., 249 U. S. 186, 39 S. Ct. 189, 63 L. Ed. where a carrier was held liable to the shipper for a shipment of poultry which was appropriated by the state military authorities; the appropriation being induced by the carrier's false or unjustified representation that the fowls were abandoned by their caretaker and dying.

however, there is no difficulty in a promisor assuming the risk of the legal possibility of his promise. 54

Impossibility due to foreign law does not fall within the same class as that due to domestic law, and it has generally been held no excuse for breach of contract. 55 Such impossibility is one of fact but frequently it should afford an excuse. The contemplated means of performance have been destroyed, 55a and often the means of performance thus destroyed have been not simply contemplated but contracted for. 56 The principle which now excuses a promisor under these circumstances had not been established early in the nineteenth century when the first cases decided that impossibility due to foreign law was no excuse. These cases have subsequently been followed with too little observation of their relation to other decisions.

§ 1939. Prevention by judicial order.

Whether a judicial order restraining or preventing performance of a contract is impossibility caused by law in such a sense as to excuse a promisor is not clear on the authorities. In a leading case it has been held that "interference by a writ sued out by a private litigant ... is not prevention by operation of law, even though the proceeding was unwarranted. "The law recognizes the fact that these private remedies may be wrongfully, that is, illegally used, and the litigant is required to give security for any damage that may be caused if it may be finally decided that the writ was improperly issued. "'57

54 E. g., an agreement that if performance is prevented by war between England and Germany, damages shall be fixed by arbitration and paid is not illegal. Smith v. Becker, [1916] 2 Ch. 86.

55 Splidt v. Heath, 2 Camp. 57; Barker v. Hodgson, 3 M. & S. 267; Spence v. Chodwick, 10 Q. B. 517; Kirk v. Gibbs, 1 H. & N. 810; Clifford v. Watts, L. R. 5 C. P. 577, 586; Cunningham v. Dunn, 3 C. P. D. 443; Jacobs v. Credit Lyonnais, 12 Q. B. D. 589; Ashmore v. Cox, [1899] 1 Q. B. 436; Tweedie Trading Co. v. James P. McDonald Co., 114 Fed. 985;

Benson v. Atwood, 13 Md. 20, 71 Am.
Dec. 611; Beebe v. Johnson, 19 Wend.
500, 32 Am. Dec. 518; Richards v.
Wreschner, 174 N. Y. App. Div. 484,
156 N. Y. S. 1054. Cf. Cunningham
v. Dunn, L. R. C. P. 443.

554 See infra, § 1951.
56 See infra, § 1948.

57 Klauber v. San Diego Street Car Co., 95 Cal. 353, 30 Pac. 555. See also South Memphis Land Co. v. McLean &c. Co., 179 Fed. 417, 102 C. C. A. 563; Sample v. Fresno Flume, etc., Co., 129 Cal. 222, 61 Pac. 1085; Union Contracting, etc., Co. v. Campbell, 2 Cal. App. 534, 84 Pac. 305; Akers v.

No doubt if the legal proceedings interfering with performance of the promise are in any way due to the fault of the promisor, as an attachment or receivership to collect a debt or debts rightfully due by him, the interference should constitute no defence, not because it is not the act of the law, but because the impossibility is primarily due to the promisor's own fault, not to fortuitous circumstances beyond his control. 58 Where, however, the proceedings which interfere with the performance of the promise are based on no fault of the promisor there seems no reason why the interference should not be an excuse, unless the circumstances surrounding the formation of the contract are such as to indicate that the possibility of such interference was recognized and the risk of it assumed by the obligor.

§ 1940. Impossibility due to death or illness.

39

One who engages for performance of such personal character that it can be performed only by a particular person is excused from liability by the physical incapacity of that person, before breach of the contract, unless the risk of such incapacity is clearly assumed by the promisor. Cases illustrating this principle relate generally to contracts of employment; and the death or long-continued illness of the employee in effect discharges his promise.60 Generally it is the promisor himself who

Central Ky. Lunatic Asylum, 10 Ky. L. Rep. 817; McQuiddy v. Brannock, 70 Mo. App. 535; Whittemore v. Sills, 76 Mo. App. 248; Doolittle v. Nash, 48 Vt. 441.

58 See infra, § 1959; Western Drug &c. Co. v. Board of Administration (Kan.), 187 Pac. 701.

59 Kansas Life Ins. Co. v. Burman, 141 Fed. 835, 73 C. C. A. 69; Moller v. Herring, 255 Fed. 670 (C. C. A.); Crise v. Lanahan (Md.), 11 Atl. 842; Webb Granite, etc., Co. v. Worcester, 187 Mass. 385, 73 N. E. 639; Attorney General v. Canadian P. R. Co., 1 Brit. Col. Part 2, p. 350.

60 Shep. Touchst. 180; Boast v. Firth, L. R. 4 C. P. 1; Givhan v. Dailey's Adm., 4 Ala. 336; Herren v. Harris (Ala.), 78 So. 921; Williams

v. Butler, 58 Ind. App. 47, 105 N. E. 387, 107 N. E. 300; Dickey v. Linscott, 20 Me. 453, 37 Am. Dec. 66; Caden v. Farwell, 98 Mass. 137; Piaggio v. Somerville (Miss.), 80 So. 342; Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 197; Cameron-Hawn Realty Co. v. Albany, 207 N. Y. 377, 382, 101 N. E. 162, 49 L. R. A. (N. S.) 922; Shaw v. Ward, 170 N. Y. S. 36; Rubin v. Siegel, 188 N. Y. App. Div. 636, 177 N. Y. S. 342; Blakely ". Sousa, 197 Pa. St. 305, 47 Atl. 286, 80 Am. St. Rep. 821; Parker v. Macomber, 17 R. I. 674, 24 Atl. 464, 16 L. R. A. 858; Hubbard v. Belden, 27 Vt. 645. See also Odell v. Wells, 171 N. Y. S. 345; Calif. Civ. Code, § 1997; S. Dak. Civ. Code, § 4962.

is to render the personal services, but the principle is applicable to contracts where the promisor has agreed that a third person shall render such services, and the latter becomes physically unable to do so; 61 and to any contract which by its terms or character requires work of a specific person as a contract to paint a portrait,62 or to write a book,63 or to care for and support another; 64 and likewise to promises which require the coöperation with the promisor of some particular person who becomes physically unable to give the required coöperation. Thus performance of a contract to buy goods at a price fixed by a third person who becomes incapacitated is excused.65 So a promise to teach a pupil for the ensuing year is excused by the death or illness of the pupil; 66 but it should be noted that the reason why one who employs such a teacher is excused from paying the agreed price is entirely different. It is perfectly possible to pay the price, and the defence of the employer is not impossibility but that without his fault he has not received the exchange for which he bargained.67

A right of renewal given in a lease may be exercised in spite of the death of either party.68 And wherever an obligation could be performed by an agent of the obligor when alive, it will survive his death and be performable by his personal representatives.69

61 Boast v. Firth, L. R. 4 C. P. 1; Robinson v. Davison, L. R. 6 Exch. 269; Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7; Caden v. Farwell, 98 Mass. 137; and see cases on bail bonds, infra, § 1944.

62 See dicta in Hall v. Wright, Ellis, B. & E. 746; Harrison v. Conlan, 10 Allen, 85; Board v. Townsend, 63 Ohio St. 514, 59 N. E. 223, 52 L. R. A. 868.

63 See dicta in Marshall v. Broadhurst, 1 Tyr. 348; Wentworth v. Cock, 10 A. & E. 42; Harrison v. Conlan, 10 Allen, 85.

64 Siler v. Gray, 86 N. C. 566. 65 See supra, § 801.

66 Stewart v. Loring, 5 Allen, 306. So a contract to form a partnership is excused by the death of one of the

prospective partners. Dow v. State
Bank, 88 Minn. 355, 93 N. W. 121.
67 See supra, § 838.

68

Hyde v. Skinner, 2 P. Wms. 196; Phillips v. Everard, 5 Sim. 102.

69 In the following cases it was held that the obligation of a promise not broken prior to the promisor's death, was terminated thereby. Smith v. Preston's Est., 170 III. 179, 48 N. E. 688 (a contract to manufacture and promote the sale of patented goods); Howell v. City Gas, etc., Co., 159 Ill. App. 311 (a promise by a householder for a supply of heat for his house); Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117, 26 L. R. A. 416, 44 Am. St. Rep. 370 (a promise to manage a business of manufacturing and selling patented articles); Browne v. Fair

In contracts of personal service not only will actual illness or death excuse performance, but the well-founded fear of either also serves as an excuse, "for the law will not compel a man to venture his life; " 70 unless the risk of the danger must be regarded as assumed by the nature of the employment, as for example nursing in a hospital for contagious diseases, or by the express terms of the contract.71

A promise otherwise personal may impose liability on the executor of the promisor if the contract so provides; 72 but even