as, if the promise were to build a common dwelling-house in one day, such a contract must be void for its inherent absurdity. (k) And impossibility is a good defence where it arises even indirectly from the act of the promisee; as where one contracted to excavate land and replace it in a certain way, and the promisee directed him to put the earth taken out on the land of another man, who would not permit it to be taken away again, the contractor was held excused from replacing the earth, and permitted to recover for the rest of the work. (kk)

8. OF ILLEGALITY OF THE CONTRACT.

That the illegality of a contract is in general a perfect defence, must be too obvious to need illustration. It may, indeed, * be regarded as an impossibility by act of law; and it is 674 put on the same footing as an impossibility by act of God;

because it would be absurd for the law to punish a man for not doing, or, in other words, to require him to do, that which it forbids. his doing.

Therefore, if one agrees to do a thing which it is lawful for him to do, and it becomes unlawful by an act of the legislature, the act avoids the promise; and so if one agrees not to do that which he may lawfully abstain from doing, but a subsequent act requires him to do it, this act also avoids the agreement. (1)

(2) Thus, in Faulkner v. Lowe, 2 Exch. 595, there was a covenant by C to pay a sum of money to A, B, and to himself C, or the survivors or survivor of them, on their joint account. C being sued upon this covenant, the court held the covenant senseless and impossible, and judgment was given for the defendant.

(kk) Tome v. Doelger, 6 Rob. 251. See also Grice v. Nichols, 59 Mich. 515;

Gallagher v. Nichols, 60 N. Y. 438; Theobald v. Burleigh, N. H. 23 Atlantic Rep. 367 (N. H. 1892).

(7) Presb. Church v. City of N. York, 5 Cowen, 538. In that case the corporation of the City of New York conveyed lands for the purposes of a church and cemetery, with a covenant for a quiet enjoyment, and afterwards, pursuant to a power granted by the legislature, passed

performance to the last moment, and then excuse it upon the plea of accident, in such a case he takes the responsibility of the delay. Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487. Where a company agreed to supply water for floating logs from a dam owned by it, a break in the dam was held not to excuse performance. Keystone Lumber, &c. Co. v. Dole, 43 Mich. 370.

Where neither party is ready to perform because both are prevented by a superior power, neither party can maintain an action against the other. Cunningham v. Dunn, 3 C. P. D. 443; following Ford v. Cotesworth, L. R. 4 Q. B. 127. A charter-party or contract of carriage seems to be strictly construed, and the covenantor is held to take the risk of contingencies other than acts of God and public enemies, making performance impossible. Tapscott v. Balfour, L. R. 8 C. P. 46; Jones v. Adamson, i Ex. D. 60; Ashcroft v. Crow Colliery Co., L. R. 9 Q. B. 540; Thiis v. Byers, 1 Q. B. D. 249; Pyman v. Dreyfus, 24 Q. B. D. 152; Budgett v. Binnington (1891), 1 Q. B. 35; Williams v. Vanderbilt, 28 N. Y. 217.

The civil law and the law of Louisiana give a wider effect to the defence of impossibility than the common law. See Engster v. West, 35 La. An. 119. — W.

But if one agrees to do what is at the time unlawful, a subsequent act making the act lawful cannot give validity to the agreement, because it was void at its beginning. A law may, however, have the effect of suspending an agreement that was originally valid, and which it makes impossible without violation of the law; and yet leave the contract so far subsisting, that upon a repeal of the law the force and obligation of the *675 contract remain. (m) It would seem that a prevention by the law of a foreign country is no excuse, because this does not make the act unlawful in the view of the law which determines the obligation of the contract. The subject of illegal contracts is again considered in a subsequent section of this chapter.

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a by-law prohibiting the use of these lands as a cemetery, held, that this was not a breach of the covenant which entitled to damages, but it was a repeal of the covenant. And Savage, C. J., thus remarked upon the authorities. "There are but few authorities on this question, and those few are at variance. The case of Brason v. Dean, 3 Mod. 39, decided in 1683, was Covenant upon a charter-party for the freight of a ship. The defendant pleaded that the ship was loaded with French goods, prohibited by law to be imported. And upon demurrer judgment was given for the plaintiff, for the court were all of opinion, that if the thing to be done was lawful at the time when the defendant entered into the covenant, though it was afterwards prohibited by act of parliament, yet the covenant was binding. But in the case of Brewster v. Kitchin, 1 Ld. Raym. 317, 321, A. D. 1698, a different and a more rational doctrine is established. It is there said: "For the difference when an act of parliament will amount to a repeal of a covenant and when not, is this: when a man covenants not to do a thing which was lawful for him to do, and an act of parliament comes after and compels him to do it, then the act repeals the covenant; and vice versa. But when a man covenants not to do a thing which was unlawful at the time of the covenant, and afterwards an act makes it lawful, the act does not repeal the covenant.' In 1 Salkeld, 198, where the same case is reported, the proposition is thus stated: Where H. covenants not to do an act or

thing which was lawful to do, and an act of parliament comes after and compels him to do it, the statute repeals the covenant. So if H. covenants to do a thing which is lawful, and an act of parliament comes in and hinders him from doing it, the covenant is repealed. But if a man covenants not to do a thing which then was unlawful, and an act comes and makes it lawful to do it, such act of parliament does not repeal the covenant.'" And see Bennett v. Woolfolk, 15 Ga. 213. As to the dissolution of contracts by a declaration of war, see Reid v. Hoskins, 4 El. & B. 979, 30 Eng. L. & Eq. 406. See also same case, 5 El. & B. 729, 34 Eng. L. & Eq. 51, affirmed 6 Ellis & B. 953, 98 Eng. L. & Eq. 130.

(m) Thus in Baylies v. Fettyplace, 7 Mass. 325, it was held, that a law of the United States laying an embargo for an unlimited time, and afterwards repealed, did not extinguish a promise to deliver debentures, but operated as a suspension only during the continuance of the law. So in Hadley v. Clarke, 8 T. R. 259, where the defendants contracted to carry the plaintiff's goods from Liverpool to Leg. horn, and on the vessel's arrival at Falmouth in the course of her voyage, an embargo was laid on her "until the further order of council;" it was held, that such embargo only suspended the execu tion, but did not dissolve the contract between the parties, and that even after two years, when the embargo was taken off, the defendants were answerable to the plaintiff in damages for the non-performance of their contract.

SECTION III.

OF DEFENCES RESTING UPON THE ACTS OR OMISSION OF THE

PLAINTIFF.

It is a good defence to an action on a contract, that the obligation to perform the act required was dependent upon some other thing which the other party was to do, and has failed to do. And if, before the one party has done anything, it is ascertained that the other party will not be able to do that which he has undertaken to do, this will be a sufficient reason why the first party should do nothing. (n) And this excuse is valid, although the omission by the other party to do the thing required of him was produced by causes which he could neither foresee nor control.1 And if it is provided that the thing shall be done "unless prevented by unavoidable accident," the accident to excuse the not doing, must be not only unavoidable, but must render *676 the act physically impossible, and not merely unprofitable and inexpedient by reason of an increase of labor and cost. (0)

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If one bound to perform a future act, before the time for doing it declares his intention not to do it, this is no breach of his contract; (p) (x) but if his declaration be not withdrawn when

(n) Caines v. Smith, 15 M. & W. 189, where defendant had promised to marry plaintiff, but married another woman. To an action for breach of promise, a plea by defendant that he had never been requested by the plaintiff to perform his contract was held ill. Johnston v. Caulkins, 1 Johns. Cas. 116, where in a similar action it was held, that if the defendant has absconded, the plaintiff need not show

an offer to marry him. And see other instances of the same principle in Short v. Stone, 8 Q. B. 358; Lovelock v. Franklyn, id. 371; Ford v. Tiley, 6 B. & C. 325; Bowdell v. Parsons, 10 East, 359; Tewksbury v. O'Connell, 21 Cal. 60; James v. Burchell, 82 N. Y. 108.

(0) See ante, p. *672, n. (h).

(p) But see Phillpotts v. Evans, 5 M. & W. 477; Ripley v. M'Clure, 4 Exch.

1 Thus, one who covenants to devote himself entirely to another's business for three years, and is prevented from so doing for about two weeks during the busy season without fault on his part, commits thereby a breach of his covenant, and cannot maintain an action on the contract for not being allowed to resume his position thereafter. Leopold v. Salkey, 89 Ill. 412. See also Johnson ". Walker, 155 Mass. 253. A singer agreed with G. to sing in "both public and private, in Great Britain and Ireland," from March 30, 1875, to July 13, 1875, “and to be in London without fail at least six days before the commencement of his engagement, for the purpose of rehearsals." It was held, on demurrer, that his failure to attend at rehearsals during the six days did not go to the root of the matter, so as to make it a condition precedent to G.'s performance of the contract, but that the latter must seek redress in an action for damages. Bettini v. Gye, 1 Q. B. D. 183. But the failure of a skilled and capable singer, through serious illness of an uncertain duration, to perform on the opening and early performances of a new opera, for which she had been engaged, goes to the root of the consideration, to the extent of justifying her employers in rescinding their contract with her to so sing. Poussard v. Spiers, 1 Q. B. D. 410. - K.

(x) The doctrine of Hochster v. De la was approved in Synge v. Syne, [1894] 1 Tour, referred to supra, pp. 35, *667, Q. B. 466, and very recently, upon a full

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the time comes for the act to be done, it constitutes a sufficient excuse for the default of the other party. (x) In all cases whatever, a promisor will be discharged from all liability, when the nonperformance of his obligation is caused by the act, or the fault, of the other contracting party. (q)1 (y)

1 If money is paid in part fulfilment of a fair contract, it cannot be recovered back when the non-fulfilment of the entire contract is owing to the fault of the one paying. Alden v. Goddard, 73 Me. 345. See Haines v. Tucker, 50 N. H. 307.-K.

The validity of many of these defences, resting upon the act or default of the other party, must depend upon the question, which is sometimes difficult, whether the contracts are in fact dependent or independent. There are cases, and especially some early ones, which seem to be severe, and more technical than rational; but of late the courts incline to decide these questions as good sense and common justice require. But there are rules by which they are guided in this matter, if not controlled; and we would add to what we have already said on this subject, that the classes of engagements contained in a contract - dependent, concurrent, and independent may be thus distinguished. Where the agreements go to the whole of the consid- *677 eration on both sides, the promises are dependent, and one of them is a condition precedent to the other. If the agreements go to a part only of the consideration on both sides, and a breach may be paid for in damages, the promises are so far independent.1 If money is to be paid on a day certain, in consideration of a thing to be performed at an earlier day, the performance of this thing is a condition precedent to the payment, and if the money is to be paid in instalments, some before a thing is to be done, and some when it is done, the doing of the thing is not a condition precedent to the former payments, but is to the latter. And if there is a day for the payment of the money, and this comes before the day fixed for the doing of the thing, or before the time when the thing, from its nature, can be performed, then the payment is at all events obligatory, and an action may be brought for it independently of the act to be done. Concurrent promises are those where the acts to be performed are simultaneous, and either party may sue the other for a breach of the contract, on showing either that he was able, ready, and willing to do his act at the proper time and in the proper way, or that he was prevented from doing it, or, being so ready to do it, by the act or default of the other contracting party. (r)

The defendant may rely on the fact that the contract has been rescinded; and this may have been done by mutual consent, or by the plaintiff, who had the right to do so, or by the defendant, if he had the right. And a suit for recovery of damages for breach of a contract is equivalent to a notice of rescission, and the contract can no longer be enforced unless it is renewed by

(r) See this subject considered and the authorities cited, ante, p. 525 et seq.

1 Where a defendant has "received a substantial portion of the consideration it is no longer competent to him to rely upon the non-performance of that which might have been originally a condition precedent." Carter v. Scargill, L. R. 10 Q. B. 564, 566.-W.