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 beans on any particular land. They contain no restriction in that respect. There can be no question that, if grown by him, and of the kinds and quality specified, defendant would have been obliged to accept 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 non-performance 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 to do a thing which happens, the promisor will be liable for a breach thereof, nowithstanding it was beyond his power to perform it; for it was his own fault 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 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 Hawell v. Coupland, L. R. 9 Q. B. 462. That was a contract to sell and deliver a certain quantity from a crop 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 intimation 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 was not limited or restricted to any 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 Peck. 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. Where such causes may intervene to prevent a party performing, he should guard against them in his contract. Order reversed. DESTRUCTION OF SUBJECT MATTER EXCUSES DEXTER V. NORTON See under Sales, page 165 BUYER'S INABILITY TO PERFORM CONDITIONS REQUIRED TO RETURN PROPERTY WILL DEFEAT HIS OPTION TO RETURN IT BAY V. THOMPSON 12 Cushing (Mass.) 281 (1853) Assumpsit for the price of a horse sold to defendant. Defense, sale on condition that defendant might return the horse, and that he had returned it. Verdict for defendant. Plaintiff offered to prove that defendant had so abused the horse that it was materially injured and lessened in value and the plaintiff had refused in consequence to receive it back. This evidence was excluded and plaintiff excepted to the ruling. BY THE COURT. The evidence offered by the plaintiff ought to have been admitted, to prove, if he could, that the horse had been abused and injured by the defendant, and so to show that the defendant had put it out of his power to comply with the condition, by returning the horse. The sale was on a condition subsequent; that is, on condition he did not elect to keep the horse, to return him within the time limited. Being on a condition subsequent, the property vested presently in the vendee, defeasible only on the performance of the condition. If the defendant, in the meantime, disabled himself from performing the condition,—and if the horse was substantially injured by the defendant by such abuse, he would be so disabled,-then the sale became absolute, the obligation to pay the price became unconditional, and the plaintiff might declare as upon an indebitatus assumpsit, without setting out the conditional contract. Moss v. Sweet, 3 Eng. Law & Eq. 311; 16 Ad. & El. N. S. 493. New trial ordered. WHERE A COMPENSATION IN DAMAGES IS NOT AN ADE- THE SAME AS IN REAL ESTATE P. AND F. CORBIN V. TRACEY 34 Conn. 325 Bill in equity brought to compel the specific performance of a contract to assign a patent right. CARPENTER, J. Decree in favor of the petitioners. "Under the motion in error, it is objected that the petitioners have not made out a case for the interference of a court of equity; that courts of equity in this state will not interfere to enforce agreements to sell personal property unless the circumstances are such as to make a trust, because there is in such a case a remedy at law by an action for damages. "The objection assumes that there is a distinction in questions of this character between real and personal property. If any such distinction exists it does not go to the extent claimed. "The ground of the jurisdiction of a court of equity in this class of cases, is, that a court of law is inadequate to decree a specific performance and can relieve the injured party only by a compensation in damages, which in many cases would fall far short of the redress which the situ ation might require. Whenever, therefore, the party wants the thing in specie and he cannot otherwise be fully compensated courts of equity will grant him a specific performance. They will decree the specific performance of a contract for the sale of lands, not because of the peculiar nature of the land, but because a party cannot be adequately compensated in damages. So in respect to personal estate; the general rule that courts of equity will not entertain jurisdiction for a specific performance of agreements respecting goods, chattels, stocks, choses in action, and other things of a merely personal nature, is limited to cases where a compensation in damages furnishes a complete and satisfactory remedy. 2 Story's Eq. Jur. secs. 717, 718. "The jurisdiction, therefore, of a court of equity does not proceed upon any distinction between real estate and personal estate, but upon the ground that damages at law may not, in the particular case, afford a complete remedy. 1 Story's Eq. Jur. sec. 716, 717, 718, and cases there cited; Clark v. Flint, 22 Pick. 231. When the remedy at law is not full and complete, and when the effect of the breach cannot be known with any exactness, either because the effect will show itself only after a long time, or for any other reason, courts of equity will enforce contracts in relation to personalty. 3 Parson on Contract (5th Ed.) 373. "An application of these principles to the case before us, relieves us of all difficulty. The contract relates to a patent right the value of which has not been tested by actual use. All the data by which its value can be estimated are yet future and contingent. Experience may prove it to be worthless; another and better invention may supersede it; or it may itself be an infringement of some patent already existing. On the other hand it may be so simple in its principles and construction as to defy all competition and give its owner a practical monopoly of all branches of business to which it is applicable. In any event its value cannot be known with any degree of exactness until after the lapse of time, and even then it is doubtful whether it can be ascertained with sufficient accuracy to do substantial justice between the parties by a compensation in damages. On the whole we are satisfied that justice can only be done in a case like this by a specific performance of the contract. There is no error in the decree. CONTRACTS TO BE PERFORMED TO THE OTHER PARTY'S SATISFACTION BROWN V. FOSTER 113 Mass., 136 (1873) Contract to recover the price of a suit of clothes. At the trial in the Central District Court of Worcester, the defendant contended, and there was evidence tending to show, that the clothes were to be made and delivered to the defendant in North Brookfield, on or before a specified day, and that they were to be made to the satisfaction of the defendant. It was agreed that the clothes were delivered on the evening of the day specified, which was Saturday, and that on the following Monday the defendant returned them to the plaintiff by the same person who delivered them, with written notice that the clothes did not fit, were unsatisfactory, and were not accepted. The defendant offered evidence that the clothes did not fit him, and that they were not made in the manner and form agreed upon. While the defendant was testifying, the plaintiff produced the clothes in Court, and requested the defendant to try them on in the presence of the jury. The defendant assented, and, having put them on, wore them in the presence of the Court and jury. The plaintiff then called several tailors as experts, who testified that the clothes needed some alterations, before they could be called a good fit, but that such alterations could be easily made without injury to them. He also offered evidence that he wrote a letter to the defendant the same day the clothes were returned, in which the following language was used: "Can't you come and let us see what the trouble with the fit of your clothes is? From what you say about the coat we think we could remedy that, and we could make another vest if necessary, and coat too." To this letter the defendant replied that the clothes were unsatisfactory to him as they were, and that he would not accept them after they had been worked over and botched up, and refused to allow the plaintiff to make a new suit, or to accept any alterations to the suit already made. There was evidence that the defendant came to the plaintiff's store soon after the clothes were returned, and the plaintiff asked him to try them on to see what alterations, if any, were necessary to make them fit; this the defendant refused to do. There was also evidence to show that a custom existed among tailors of having garments tried on after they were finished, and then making any alterations which might be necessary to make them fit. |