It is held to be an excise when caused by the non-continuance either of the subject matter of the contract or of the conditions essential to its performance ; Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215 ; Buffalo & L. Land Co. v. Improve ment Co., 165 N. Y. 247, 59 N. E. 5, 51 L. R. A. 951.
Certain contracts are construed as con taining an implied exception of impossible events, and even general words in the con tract will not be held to apply to the possi bility of the particular contingency which afterwards happened; Leake, Contr. 702; L. R. 4 Q. B. 185 ; Walker v. Tucker, 70 Ill. 527; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415.
Where, in an action of breach of promise of marriage, a plea that consummation had become impossible by reason of bodily dis ease endangering the life of the defendant, was held by four judges to three in the ex chequer chamber to be no defence, the court of the queen's bench having been equally di vided; El. Bl. & El. 748, 29 L. J. Q. B. 45 but of this case it is said that "it is so much against the tendency of the Tatter cases that it is of little or no authority beyond the point actually decided ;" Wald, Poll. Contr. 378; and in an American case upon analogous facts the court approved the criticism upon the English case and refused to follow it.
Where the contract is for personal serv ices, there is an implied condition that the parties should be alive to perfoim them ; Blakely v. Sousa, 197 Pa. 305, 47 Atl. 286,
80 Am. St. Rep. 821. Likewise where a party becomes, without his own fault, in capable of fulfilling the contract in his life time; Dickey v. Linscott, 20 Me. 453, 37 Am. Dec. 66 ; Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7; Green v. Gilbert, 21 Wis. 30. Impossibility may arise by the default of ei ther ,party. Default of promisor is breach • of the contract ; default of promisee discharg es promisor and may be treated as breach; U. S. v. Peck, 102 U. S. 64, 26 L. Ed. • 46. Where the existence of a contract is made to depend on a future contingent event assign ed by the will of the parties, then the subse quent impossibility of the same discharges the contract. Unexpected difficulty or in convenience short of impossibility is no ex cuse ; U. S. v. Gleason, 175 U. S. 588, 20 Sup. Ct. 228, 44 L. Ed. 284; Harlow v. Borough of Homestead, 194 Pa. 57, 45 Atl. 87.; Butter field v. Byron, 153 Mass. 517, 27 N. E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654.
The cases upon this subject are necessarily of infinite variety, as, is natural where the question is so largely one of construction. To examine them in detail would be impossi ble- within the, scope of this title, but they will be found collected and classified in the various works on contracts.
See CONTRACT ; UNLAWFUL AGREEMENT ; CONDITION ; PERFORMANCE; ACT OF GOD.