Reid v. Alaska Packing Co.

Mr. Justice Bean, after stating the facts in the foregoing language, delivered the opinion. 1. We think that the evidence was competent as to the statements made by the officers of the defendant, when the memorandum was delivered to them by Patton, to the effect that they would not ratify or confirm the contract because the defendant did not pack or deal in salmon of the kind specified therein. It is admitted that Webber & Co. exceeded their authority in making the contract of warranty as to the quality of fish. In order to render the defendant liable thereon, it was necessary, therefore, for the plaintiff to show that it had ratified the contract, either in express teyms or by silence and acquiescence. One material act in the alleged ratification was the delivery of the memorandum of the contract to defendant, thus advising it of the contents thereof. What was said at the time explaining the act of delivery and illustrating its character was competent as part of -the res gestas, and as tending to show the want of an express ratification: 1 Greenl. Ev. (15 ed.), § 108; Feagon v. Cureton, 19 Ga. 404; Wetmore v. Mell, 1 Ohio St. 26(59 Am. Dec. 607); Fischer Leaf Co. v. Whipple, 51 Mo. App. 181; Currier v. Boston & Maine R. Co. 34 N. H. 498. — 434 — 2. The instruction that an agreement to do something which hotli parties know at the time to be physically impossible cannot be enforced is sound as an abstract proposition of law. “A. mutual undertaking between parties,” says Mr. Bishop, “to do what both know to he impossible, is vain and idle, lacking the elements of contract, and no suit can be maintained thereon ”: Bishop, Cont. § 579. And Mr. Clark says: “A promise to do something which is either impossible in law or plysically impossible is no consideration”: Clark, Cont. 181. Before one can be excused, however, from the performance of a valid contract, deliberately entered into, because of the impossibility of performance, it must appear that the thing agreed to be done is impossible upon its face, and cannot, by any means, be effected. It is no excuse for the nonperformance of a contract that it is impossible for the obligor to fulfill it, if the performance be in its nature possible. “ If the covenant be within the range of possibility,” says Mr. Chief Justice Nelson, “however absurd or improbable the idea of the execution of it may be, it will be upheld — as where one covenants it shall rain to-morrow, or that the Pope shall be at Westminster on a certain day. To bring the case within the rule of dispensation, it must appear that the thing to be done cannot by any means be accomplished ; for, if it is only improbable, or out of the power of the obligor, it is not in law deemed impossible. * * If a party enter into an absolute contract without any qualification or exception, and receives from the party with whom he contracts the consideration of such engagement, he must abide by the contract, and either do the act or pay damages ; his liability arising from his own direct and positive undertaking”: Beebe v. Johnson, 19 Wend. 500 (32 Am. Dec. 518). There is a marked distinction, not to be overlooked in this connection, between a mere disability or inability of — 435 — a party to perform a contract and the absolute and inherent impossibility of performance in the true sense. Thus, it is a defense to an action on a contract for the sale of specific property that the property had ceased to exist when the contract was entered into, or had perished or been destroyed before the time of performance, because in that event performance is physically impossible: Dexter v. Norton, 47 N. Y. 62 (7 Am. Rep. 415); Wells v. Calnan, 107 Mass. 514 (9 Am. Rep. 65). A contract, however, to make and deliver a quantity of goods by a stated time, may become impossible in fact by the destruction of the vendor’s mill or factory; but that would be no excuse (Jones v. United States, 96 U. S. 24; Booth v. Spuyten Duyvil Mill Co. 60 N. Y. 487), unless, perhaps, the agreement was to produce or manufacture the goods in the vendor’s own mill which had been destroyed : Howell v. Coupland, L. R. 9 Q. B. 462. Unless an act is inherently impossible within itself, a contract to do it is binding, although the performance may be improbable, or even impossible, to the promisor. To excuse performance, the impossibility must be something more than merely a great inconvenience, hardship, or even impracticability. “ If one, for a valid consideration, promises another to do that which is in fact impossible,” says Mr. Parsons, “ but the promise is not obtained by actual or constructive fraud, and is not, on its face, obviously impossible, there seems no reason why the promisor should not be held to pay damages for the breach of the contract; not, in fact, for not doing what cannot be done, but for undertaking and promising to do it”: 2 Parsons, Cont.(7 ed.)*673. Mr. Clark says that the thing agreed to be done must be impossible on its face, not merely improbable, or impossible to the promisor : Clark,Cont.§ 181. And Mr. Chitty, that it must be “naturally impossible”: 1 Chitty, Cont. (11 Am. ed.) 64. The doctrine is well illustrated by the early case of Thornborow v. Whitacre, 2 Raym. — 436 — 1164. In tliat case the defendant, for a valuable consideration, promised to deliver to the plaintiff two grains of rye corn on a certain Monday, and to double the quantity in geometrical progression on each succeeding Monday for a definite time. It was insisted that the agreement was void, and impossible of performance, because there ivas not enough rye in the world with which to comply therewith. In support of this proposition it was argued that there were three sorts of impossibilities which excuse a party to a contract from its performance: (1) An impossibility in law; (2) a natural impossibility, preventing performance from the nature of the thing; and (3) impossibility in fact, although there be no inherent impossibility in the nature of the thing stipulated to he performed. But the court overruled the defense, Mr. Chief Justice Holt saying that, where a man will, for a valuable consideration, undertake to do an impossible thing, though it cannot be performed, yet he shall answer in damages, and that the impossibility urged in the case was only impossible in fact and with respect to the defendant’s ability, which was not such an impossibility as would make the contract void. The rule to be deduced from the authorities is that, if one enters into a valid contract, for a sufficient consideration, to do a lawful thing, possible in itself — that is, in the nature of things — to be done, he must either carry out the contract according to its terms or answer in damages for a failure to do so. The mere impossibility of performance in fact will not be enough, but the contract must be obviously impossible upon its face before such a defense can be made : The Harriman, 76 U. S. (9 Wall.) 161. Now, applying this rule to the contract under consideration, it cannot, we think, be held that the packing of salmon in Alaska “exactly like Puget Sound fancy Sockeye” is inherently impossible. It will be readily conceded that salmon — 437 — of this class can be packed in Alaska if they can he found there, and, even if they cannot be found there, they can be taken there and packed ; hence it is clearly possible to pack them in Alaska. But, going further, and assuming that the contract contemplates that the salmon were to be both caught and packed in Alaska (although it is not so stipulated), yet the performance is not so physically or obviously impossible as to be an excuse for failing to comply with the contract. The waters and bays of Alaska cover many thousands of miles, and a very large part is undeveloped and unexplored. Even if heretofore no salmon have been found in the waters of that country exactly like the Puget Sound fancy Sockeye, it furnishes no proof that they are not there, or cannot be taken there and packed. Impossibility of performance,-as a defense, does not rest nor can it be based upon a mere improbability, or even an impossibility in fact, but it must appear on the face of the contract and from its nature that the performance is absolutely and physically impossible; otherwise the contract must be held valid and binding. The defendant was engaged in the business of packing salmon in Alaska, and knew, or should have known, whether it was possible for it to comply with the contract. If, with this knowledge, it deliberately stipulated to furnish to the plaintiff a certain quality of fish, it must live up to its contract, or answer in damages for a failure to do so; nor can it urge as a defense the mere impossibility of performance. It was error, therefore, to give the instruction complained of, because it was not applicable to the contract under consideration. 3. It is argued, however, that the error was harmless, for the contract itself is invalid, because (1) it is unilateral, and not binding upon plaintiff, and (2) it is an agreement for the sale of personal property at a price in excess of $50, and does not express a consideration. Neither of these points was made in the court below, and it is probable that — 438 — all the evidence bearing on the validity of the contract from this point of view was not given at the trial. It is doubtful, therefore, whether we should now consider the question suggested. Enough does appear, however, to show that the contract was made by a firm of brokers, probably acting as the agents of both parties — of the defendant to sell, and of the plaintiff to buy. The memorandum delivered by them to the defendant through Patton is in form a sold note. It is probable they delivered a bought note to the plaintiff, and entered the contract in their books. If so, their signature was the signature of both parties, and, if the notes were retained without objection by such parties, the contract is mutually binding upon them, and is a good contract of sale and purchase: Butler v. Thomson, 92 U. S. 412; Benjamin, Sales (7 ed.), § 277; Browne, Stat. Frauds (4 ed.), § 351; 4 Am. & Eng. Ency. Law (2 ed.), 751. 4. This view disposes of the other question, because the promise of the plaintiff to purchase was a good consideration for the promise of the defendant to sell, and therefore the contract does express a consideration: Bishop, Cont. § 76. The judgment of the court below is reversed, and a new trial ordered. Keversed.