Anderson v. May , 17 L.R.A. 555 ( 1892 )

GiljtllaN, C. J.

The defendant having alleged as a counterclaim a contract in June, 1890, between him and plaintiff, whereby the latter agreed to sell and deliver to the former, on or before November 15th, certain quantities of specified kinds of beans, and that he failed so to do except as to a part thereof, the plaintiff, in his reply, alleged in substance that the contract was‘to deliver the beans from the crop that he should raise that year from his market gardening' farm near Red Wing. Upon the trial the contract was proved by letters passing between the parties. From these it fairly appears- ( That the beans to be delivered were to be grown by plaintiff, though / it cannot be gathered from them that he was to grow the beans on any particular land. They contain no restriction in that respect. \ There can be no question that, ij grown by him, and of the kinds, and quality specified, defendant. would-Jiave-been-obliged to accent the — beans, though not grown on any land previously cultivated by plaintiff. The contract, therefore, was, in effect, to raise and sell and deliver the quantities, kinds, and quality of beans specified, — a. contract in its nature possible of performance.

As an excuse for not delivering the entire quantity contracted for, the plaintiff relies on proof of the fact that an early unexpected frost destroyed or injured his crop to such extent that he was unable to' deliver the entire quantity.

What, ,in the way of subsequently arising impossibility for the-party to perform, will suffice as excuse for nonperformance of a contract, is well settled in the decisions; the only apparent difference in them arising from the application of the rules to particular circumstances. The general rule is as well stated as anywhere in 2 Chit. Cont. 1074, thus: “Where the contract is¡Jo, do..Thing’ which is possible in itself, or where it is conditioned on. any event which happens, the promisor w_ill_be liable for .a breach thereof.-noi-withstanding it was beyond his power to perform, it l for it wag his-gwnUault to run the risk of undertaking to perform an impossibility, when he might have provided against it by his contract. And therefore, in such cases, the performance is not excused by the occurrence of an inevitable accident, or other contingency, although it was not foreseen by, or within the control of, the party.” An application of this rule is furnished by Cowley v. Davidson, 13 Minn. 92, (Gil. 86.) What is sometimes called an “exception to the rule” is where the contract is implied to be made on the assumed continued existence of a particular person or thing, and the person or thing ceases to exist, as, where it is for personal service, and the person dies, or it is for repairs upon a particular ship or building, and the ship or building is destroyed. An agreement to sell and deliver at a future time a specific chattel existing when the agreement is made would come under this exception. The exception was extended further than in any other case we have found in Howell v. Coupland, L. R. 9 Q. B. 462. That was a contract to sell and deliver a certain quantity from a cropj to be raised on a particular piece of land, and the entire crop was destroyed by blight. The court held the contract to be to deliver part of a specific thing, to wit, of the crop to be grown on a given piece of land, and held it to come within the rule that, where the obligation depends on the assumed existence of a specific thing, performance is excused by the destruction of the thing without the parties’ fault. Without intimating whether we would follow that decision in a similar case, we will say that the case is unlike this, in that in this case the plaintiff..wag._n.ot limited or restricted to anv particular land. It was not an undertaking to sell and deliver part of a specific crop, but a general undertaking to raise, sell, and deliver the specified quantity of beans. We have been cited to and found no case holding that, where one agrees generally to produce, by manufacture or otherwise, a particular thing, performance being possible in the nature of things, he may be excused from! performance by the destruction, before completion or delivery, of the thing, from whatever cause, except the act of the other party. Applications of the general rule, where the thing agreed to be produced was, before completion, destroyed without the party’s fault, are furnished in Adams v. Nichols, 19 Pick. 275, 279; School Dist. v. Dauchy, 25 Conn. 530; and Trustees v. Bennett, 27 N. J. Law, 513, approved and followed in Stees v. Leonard, 20 Minn. 494, (Gil. 448.) Where such causes may intervene to prevent a party performing, he should guard against them in his contract.

(Opinion published 52 N. W. Rep. 530.)

Order reversed.