seats it was argued that it would follow from a decision for the defendant that "if a cabman was engaged to take some one to Epsom on Derby Day at a suitable enhanced price for such a journey, say £10, both parties to the contract would be discharged in the contingency of the race at Epsom for some reason becoming impossible." But Vaughan Williams, L. J., replied: "I do not think this follows, for I do not think that in the cab case the happening of the race would be the foundation of the contract. No doubt the purpose of the engagor would be to go to see the Derby, and the price would be proportionately high; but the cab had no special qualifications for the purpose which led to the selection of the cab for this particular occasion. Any other cab would have done as well. Moreover, I think that, under the cab contract, the hirer, even if the race went off, could have said, 'Drive me to Epsom; I will pay you the agreed sum; you have nothing to do with the purpose for which I hired the cab." 54

The right to recover payments already made for a considtion which fails should turn upon the same principle as the right to enforce payments, and in some of the coronation cases that first arose it was held that payments made for seats from which to see the procession might be recovered; 55 but in later decisions it was held that if money had already been paid it could not be recovered. 56 And where a right of action for a payment had already accrued before performance became impossible, the situation was held to be the same as where a

54 This distinction is supported by Herne Bay Steamboat Co. v. Hutton, 19 T. L. Rep. 680, where the charterer of a steamboat was held bound to pay the agreed hire although the purpose of the charter as stated in the contract was to visit a naval review to be held in connection with the coronation.

55 Krell v. Henry, 18 T. L. Rep. 1823. On appeal the claim to recover the advanced payment was dropped and the hirer merely successfully contested the claim to collect the balance of the agreed price. [1903] 2 K. B. 740. In Lumsden v. Barton, 19 T. L. Rep. 53, the owner of the seats had been to con

siderable expense in preparing for the procession, and on this account the recovery was denied, but it was intimated that except for this fact recovery might have been had.

56 Blakeley v. Muller, 19 T. L. Rep. 186; Chandler v. Webster, [1904] 1 K. B. 493. Where, however, a payment was made after the decision to operate on the King had been made, since the performance of the contract was then sure to be impossible, the payment was held recoverable as made under a material mistake of fact. Clark v. Lindsay, 19 T. L. Rep. 202; Griffith v. Brymer, 19 T. L. Rep. 434.

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payment had already been made. 57 It was, indeed, truly said: 5 "A person who has agreed to pay a sum of money cannot be in a better position by reason of his having failed to perform his obligation to pay it at the time when he ought to have done so, than that which he would have occupied if he had paid the money in accordance with the contract." But the correct inference to be drawn is that the money if paid should have been recoverable. 59 So far as the decisions go on the fact that money had been expended by the party receiving the advanced payment which made it inequitable to require the return of the payment they may perhaps be supported, 60 though where no part of the agreed consideration for a payment has been received, the fact that the party receiving it has made preparations for performance has not generally been made the basis for decision, but beyond this it can only be said that the cases in question are inconsistent with many others which allow recovery of payments made in advance for a consideration which is afterwards not given owing to excusable impossibility.61

1955. Other cases of fortuitous destruction of value of performance.

A series of cases in principle somewhat similar to the coronation cases, arose in New York on contracts to advertise in a "Souvenir and Program of International Yacht Races," which were to take place in September, 1914. The price of the advertising was payable "upon publication and delivery of one copy." The program was printed as expected some weeks before the date fixed for the races. It was placed on sale and a number of copies sold early in August. About the middle of August the races were given up on account of the war. It was held that the price could not be recovered from those whose

57 Chandler v. Webster, [1904] 1 K. B. 493.

58 By Collins, M. R., at page 497. 59 See infra, § 1974.

60 See Lumsden v. Barton, 19 T. L. Rep. 53, where this ground was distinctly taken. In Chandler v. Webster, [1904] 1 K. B. 493, it was suggested as

an additional ground of decision by Collins, M. R., that "time has elapsed, and the position of both parties may have been more or less altered, and it is impossible to adjust or ascertain the rights of the parties with exactitude."

61 See infra, § 1974.

advertisements had been inserted.62 The adoption of a law prohibiting the sale of liquor has likewise been held to justify a tenant in terminating a lease of property which the parties intended to be used as a saloon.63 The great weight of authority, however, is otherwise on this point,64 unless the use for which the premises were leased is confined to maintaining a saloon.65 And even though the use of the premises is restricted to "saloon purposes," the tenant has in some cases been held bound to continue to perform his covenants.66

There is obviously no impossibility or illegality in paying the rent, and the landlord by making the lease has conveyed to the tenant the estate for which rent was promised. Nor has the landlord broken any express or implied covenant. Even though the leased premises are expressly required by the lease to be used for the sale of intoxicants, the analogy which has been invoked, of total destruction of leased premises,67 seems scarcely applicable. The landlord has not covenanted that the tenant shall have a right to sell intoxicants, but has imposed a condition for his own benefit; and certainly unless and until he chooses to take advantage of it, the tenant is not deprived of the use of the premises. If it seems just to excuse the tenant the only reason is because the lease was made on the vital assumption that liquor-selling would continue to be legal. The fact that a lease is a conveyance and not simply a continuing contract, and the numerous authorities enforcing liability to pay rent in spite of destruction of leased premises, make it difficult to give relief. That the tenant has been relieved, nevertheless, in several cases indicates clearly the gravitation of the law towards a recognition of the principle that fortuitous destruction of the value of performance by a circumstance wholly outside the contemplation of the parties may excuse a promisor. In any event, however, it seems clear that a promise would not be discharged because the performance promised in return had lost value because of supervening fortuitous circumstances, unless these circumstances nearly or quite completely destroyed the purpose of the bargain."

68

Houston Ice &c. Co. v. Keenan, 99 Tex. 79, 88 S. W. 197; Koen v. Fairmont Brewing Co., 69 W. Va. 94, 70 S. E. 1098. See also Standard Brewing Co. v. Weil, 129 Md. 487, 99 Atl. 661, L. R. A. 1917 C. 929, Ann. Cas. 1918 D. 1143. It was relied upon in all of these decisions except that of Texas, that non-intoxicating drinks and tobacco might be sold by the lessee; and in Greil Bros. Co. v. Mabson, 179 Ala. 444, 60 So. 876, 43 L. R. A. (N. S.) 664, a lease for occupation as a bar and not otherwise " was distinguished, as necessarily requiring the sale of in

toxicants and the lessee was held excused.

67 As to the law in such a case, see supra, §§ 944-946.

68 These decisions may profitably be compared with those where mutual mistake as to some vital characteristic of a thing contracted for has been held to justify rescission. See supra, §§ 1559, 1569-1572.

69 See supra, §§ 944-946.

70 In Abbaye v. United States Motor Cab Co., 71 N. Y. Misc. 454, 128 N. Y. S. 697, the loss of an "all night license" was held not to discharge a contract to

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§ 1956. Partial impossibility.

In an instructive opinion in a lower court in New York,71 while using the prevailing terminology of implied conditions, Rodenbeck, J., recognized that "these terms are implied in the contract by force of the law itself, and not because the parties had them in mind; whether we approve of their insertion upon the theory that had the intention of the parties been called to the conditions giving rise to the application of the rule, they would have omitted any reference to them because obviously covered by the law, or upon the theory that they would have regarded them as just provisions to have inserted." Since the qualification of the literal terms of the promise is imposed by the law, on principles of justice, not because of the expressed intention of the partes, the extent of the qualification depends merely on what is just. "The conditions that rendered performance impossible do not terminate the contract ab initio, and vitiate what has been done and what remains to be done that is capable of execution. The conditions may be of such an extent as to amount to a substantial abrogation of the entire contract, or they may relate to an insignificant part of the contract, but they excuse performance only to the extent to which performance is impossible, and leave what has been done valid permitting a recovery therefor, and may not excuse performance of the remaining work. No general rule can be laid down which will apply to all cases, but each case must be decided upon its own facts, and that this course can be taken and justice done according to the facts in each case unhampered by written rules is due to the great flexibility of the common law which is its chief merit." 72

make a monthly payment for a hackstand in front of the plaintiff's restaurant. See also Standard Brewing Co. v. Weil, 129 Md. 487, 99 Atl. 661, L. R. A. 1917 C. 929, Ann. Cas. 1918 D. 1143.

71 Kinzer Const. Co. v. State, 125 N. Y. S. 46, 55 (Ct. Cl.).

72 Ibid. In Board of Education v. Townsend, 63 Oh. St. 514, 59 N. E. 223, 52 L. R. A. 868, in consideration of the conveyance by a board of

education, of a lot on which was situated a school house and other buildings suitable for a public school, the purchaser agreed to convey to the board another lot then vacant, and to remove, reconstruct and rebuild thereon, the school house, so that it would be in a suitable and proper condition for school purposes. It was held no defence to an action for damages for failure to perform the contract with respect to the school house, that