Dixon v. Breon , 1903 Pa. Super. LEXIS 216 ( 1903 )

Opinion by

Oklady, J.,

This action of assumpsit was brought to recover a balance claimed to be due on four timber contracts, and for goods sold and delivered, work and labor done, services rendered, and for money had and received by the defendant in carrying out the lumbering operations referred to in the contracts. The assignments of error relate to the exclusion of evidence offered by the defendant through which he claimed the right to set off certain losses which had resulted from the plaintiff’s failure to comply with the terms of his contract, dated February 19,1901. Under this contract Dixon, a log jobber, covenanted and agreed to sell to Breon, a dealer in manufactured lumber, a certain quantity of hemlock and hard wood logs, located on certain specified tracts of land, which he was to cut, saw and manufacture into lumber, and to deliver the same on railroad cars in such sizes and quantities as Breon should direct. There were two jobs, one known as “Mountain Run,” the other as “Winterburn.” Operations under the contract were promptly begun and considerable work was done thereunder, so that practically all the logs had been delivered at a mill site to be sawed into lumber, before May 8, 1901, when they were all destroyed by a forest fire, which had started at a distant point, but by force of a “ terribly strong wind spreading the fire from some place unknown,” it was directed to the logs. It is admitted that Dixon and Breon were without fault in regard to the fire, and that the subject-matter of the contract was totally destroyed while the contract was in course of execution, so that, through an uncontrollable natural agency, its performance became impossible. It is likewise clear that the parties made their contract with regard to the particular timber mentioned therein. The timber, as specifically identified, was “ estimated to contain about 400,000 to 600,000 feet from the Winterburn job and 300,000 to 500,000 from the Mountain Run job.” It was not a sale of a certain quantity of lumber, but a sale in bulk of all the timber standing on particular lands, without regard to quality or quantity, and it could not be replaced by any other. The excluded testimony was offered to show that Breon had made contracts for selling the manufactured lumber which was to be delivered by Dixon, and that by reason of Dixon’s failure to comply with his contract, Breon had been compelled to purchase other lumber in the market, and had sustained losses thereby which he claimed to set off against Dixon’s claim in the present action.

Paradme v. Jane, Aleyn, 26, the leading case of a class upon which the appellant relies decides “that where the law creates a duty or charge and the party is disabled to perform it without any default in him, and hath no remedy oyer, there the law will excuse him. . . . But where a party by his own contract creates a duty or charge upon himself, he is bound to make it good., if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” In that case the defendant had taken a lease, covenanting to pay rent and the defense was that a foreign enemy had invaded the realm with a hostile army and entered upon the possession and expelled him, whereby he could not take the profits, and it was held that the plea was insufficient and that he ought to pay his rent, which case has been followed by many courts to the extent of holding that a man must fulfil his covenants deliberately made. The accidental destruction of a leasehold building or the tenant’s occupation being otherwise interrupted by inevitable accident does not determine or suspend the obligation to pay rent, either at law or in equity. The performance of the contract does not become impossible. Expenses, discomforts and loss of profits may render it difficult or impracticable for a tenant to go on paying rent, but it does not render its payment impossible in any other sense than it renders the payment of any debt to any other creditor impossible.

In River Wear Commissioners v. Adamson, L. R. 2 Appeal Cases, 743, Lord Blackburn says : “ The really important part of that decision is that where a contract is made which does not either expressly or impliedly except the act of God, the courts could not introduce that exception by intendment of law.” The decisions are discordant in following this ancient case and in Bishop on Contracts, sec. 612, the decision as quoted is held to be but a dictum and not sustained by the later cases. “ If the absolute impossibility created by the act of God were in the contemplation of the parties, the expression would not be, that the one should do it and the other pay for it, for such expression would, under the circumstances, be wholly inappropriate and ridiculous.” When parties agree that one shall do a thing for the benefit of the other and so much money shall be paid for the doing, and their agreement goes no further, the words used exclude the supposition of either having contemplated the interposition of God, a public enemy, or the law, so as to put performance above and beyond human power; on the coming of such an impossibility, performance has ceased to be a thing of human contemplation. Where the thing is possible in itself, the obligation subsists notwithstanding it is beyond the means of the person obliged to accomplish it, and he is answerable for the nonperformance of his engagement: 1 Parsons on Contracts, 556, and note; Pollock on Contracts, * 868.

There is no suggestion of negligence or want of diligence, judgment or skill on the part of Dixon, and the total destruction of the logs by a forest fire, which must be treated upon this record as an irresistible superhuman agency which could not have been prevented by any amount of foresight or care, relieves him from the performance of his contract to deliver the logs. The expression “ act of God ” has received many definitions (1 Am. & Eng. Ency. of Law [2ded.], 584), and includes natural accidents or disturbances, such as lightning, earthquakes, tempests, tornadoes, etc., impossible to be foreseen and therefore impossible to be guarded against: Lovering v. Buck Mt. Coal Co., 54 Pa. 291; Livezey v. Phila., 64 Pa. 106; Penna. R. R. Co. v. Fries, 87 Pa. 234; Ward v. Vance, 93 Pa. 499; City of Allegheny v. Zimmerman, 95 Pa. 287; Long v. Penna. R. R. Co., 147 Pa. 343.

The cases on which the appellant relies do not decide the question involved here. School Trustees v. Bennett, 27 N. J. L. 513, Dermott v. Jones, 2 Wall. 1, and Adams v. Nichols, 36 Mass. 275, were building contracts. Hoy v. Holt, 91 Pa. 88, was a bailment by a special contract with a special covenant to repair.

■ “ It is a well settled rule of law that if a party by his contract charges himself with an obligation possible to be performed, he must make it good unless its performance is rendered impossible by the act of God, the law or the other party. Unforeseen difficulties, however great, will not excuse him; ” Dermott v. Jones, supra. And to bring the exception within the rule of a dispensation it must appear that the thing to be done cannot by any means be accomplished, for if it be only improbable, or out of the power of the obligor, it is not deemed in law impossible: 3 Com. Dig. 93. If the covenant be within the range of possibility, however absurd or improbable the idea of execution may be, it will be upheld: School v. Bennett, 72 Am. Dec. 375. The same principle has been announced in our own Supreme Court: Hand v. Baynes, 4 Whar. 204. See also Pengra v. Wheeler, 21 L. R. A. 726, and Angus v. Scully, 49 L. R. A. 562.

The exception mentioned in all the cases beginning with Paradine v. Jane is clearly defined in the one before us. The property was specified and under the terms of the contract no other timber or lumber could be substituted for that which was burned up ; the destruction of the property was total ■—-it ceased to have any physical existence—and its loss was caused by an irresistible superhuman agency without fault of either party. In regard to such a contract each party must reasonably be expected to take into consideration the possibility of the demolition of the subject-matter of the contract without incorporating any provision in regard to it in the writing. As in the case of an absolute promise which is naturally discharged by the death of either party, or an absolute agreement to deliver a certain horse on a certain day in which it would be understood, though not expressed, that the parties had contracted in the belief that the horse would be alive at the time fixed for delivery. It has been held that when a public hall is let for' an entertainment on a future day, if before the day arrives the hall is accidentally destroyed by fire, the bargain is ended: Taylor, v. Caldwell, 3 B. & S. 826; if coal becomes exhausted, the lessee will be excused from his covenants to mine in a workmanlike manner: Walker v. Tucker, 70 Ill. 527; if the water in a spring failed because of drought or other natural cause which neither party could prevent, it was no breach of any covenant express or implied for its supply: Ward v. Vance, 93 Pa. 499; that the contract for an allowance to a deserted wife, “so long as she should continue to live separate and apart from her husband,” would be terminated by his death: Miller v. Woodward, 2 Beav. 271.

Where a contract is entered into of a continuing character or to be performed at a future time dependent upon the continued existence of a particular person or thing, or the continuing'ability of the obligor to perform, subsequent death, destruction or disability will excuse the obligor from compliance with the terms of the contract: 1 Am. & Eng. Ency. of Law (2d ed.), 590; 7 Am. & Eng. Ency. of Law, 147; Wells v. Calman, 107 Mass. 514, and cases cited; Scully v. Kirkpatrick, 79 Pa. 324; Blakely v. Sousa, 197 Pa. 305; Stewart v. Stone, 14 L. R. A. 215, and note; Anderson v. May, 17 L. R. A. 555. A contract to pay rent or royalty, as in Magaw v. Lambert, 3 Pa. 444, and Dyer v. Wightman, 66 Pa. 425. Bussman v. Ganster, 72 Pa. 285, stands on an entirely different principle, for the reason stated by Chief Justice Gibson in Fisher v. Milliken, 8 Pa. 111 namely, “ nothing but a surrender, a release, or an eviction can in whole or in part absolve the tenant from the obligation of his covenant with his landlord.” Contracts' for the erection of buildings as in Trustees v. Bennett, supra, and Board of Education v. Townsend, 63 Ohio, 514, s. c., 52 L. R. A. 868; or for the bailment of property as in Hoy v. Holt, supra, must be strictly performed for the reason that the contract is not rendered impossible of performance although it is made more difficult or expensivé by unforeseen casualties..

The evidence suggested in the assignments of error was properly excluded and the judgment is affirmed.