Roy Realty Co. v. B. Altman & Co.

Smith, J.: This contract was made upon June 1, 1915. At the time that it was made all of the great powers were engaged in war. The situation was such that at any time our country, the United States,» might be involved in the same war. Trade conditions were in an extremely unsettled state. Importation was practically impossible. Transportation in this country was crippled, and the manufacture of many articles in this country was either stopped or seriously limited by these unsettled conditions. Of these facts the court will take judicial notice. They are matters of common knowledge. This contract read in the light of these .existing conditions can only mean that the fulfillment of this contract was conditional upon the possibility of the defendant’s securing merchandise which it agreed to sell. Under this construction the plaintiff cannot recover without showing that it was possible for the defendant to procure the linens for which the contract called. Whichever party may have the burden of first introducing evidence as to the possibility or non-possibility of the performance of the contract, the burden ultimately rests upon the plaintiff to show that the contract was possible of fulfillment before suit was brought, and with that burden the plaintiff’s cause of action is incomplete without an allegation to that effect. The allegation of the defendant’s refusal to perform its contract before the commencement of the action is not an allegation of the breach of the contract, unless it were possible for the defendant to have performed at the time of the refusal. [45] The cases cited in the opinion of Mr. Justice Page are cases that apply to trade under normal conditions, and are not applicable to conditions existing at the time of the making of this contract. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs, with leave to the plaintiff to serve an amended complaint on payment of said costs. Latjghlin, J., concurs; Dowling, J., concurs in result; Clarke, P. J., and Page, J., dissent.