CONTRACTS.

[Allen Circuit Court,

April Term, 1898.]

Day, Price and Norris, JJ.

#### Board of Education, Etc., v. Townsend.

1. General Rules as to Performance, when, by Unavoidable Accident, Performance is Impossible.

It is a general doctrine that when a party voluntarily undertakes to do a thing without qualification, performance is not excused because, by inevitable accident or other contingency not foreseen, it becomes impossible for him to do the act or thing which he agreed to do. But when performance depends on the continued existence of a given person or thing, and such continued existence is assumed as a basis of the agreement, the death of thq person or the destruction of the thing puts an end to the obligation.

2. A Contract which Palls within Rule East Above Stated.

An agreement “ to remove the present schoolhouse * * * to the above described premises and rebuild and reconstruct the said building so that it will be in suitable and proper condition for school purposes,” within sixty days, falls within the rule last above stated. It is a contract in which both paries assumed and relied upon the continued existence of the schoolhouse, and its destruction by windstorm prior to the sixty days, renders its performance impossible and the contractor is excused.

Error to the Court of Common Pleas of Allen county.

Day, J.

The plaintiff here, and in the lower court, prosecutes error to procure the reversal of a judgment rendered against it, in an action to recover a damage claimed to have resulted from a failure of defendant to perform his contract to remove and rebuild plaintiff’s schoolhouse, situate in one of the sub-districts of Bath township, Allen county.

The facts of the case are agreed upon by the parties, and are: The said board of education, and defendant Townsend, made an agreement in writing, on November 7,1895, in which the said board agreed to make a proper conveyance of a strip of land, ninety feet wide, owned, occupied and used by it for school purposes, and particularly described, on which was a schoolhouse, to the Dima Northern Railway Company, on and over which to construct and build its railroad. In consideration of such conveyance for the use of the railway company, Townsend agreed to procure another schoolhouse site near by, for the said board, and to remove and rebuild the said schoolhouse on such new site, and put it in such *733condition that it would be fit for use for school purposes; also to remove certain out-buildings; and do and perform other things, all of which was to be done and finished within sixty days from said November 7th. The strip of land was at once conveyed to the railroad company, and a railroad track was constructed upon and across it. Townsend procured the new site, had title thereto vested in the board of education, and done and performed all the other stipulations of his contract, to the satisfaction of the said board, except the removal and rebuilding of the schoolhouse on the new site; and that condition of his contract he entirely omitted and failed to perform. On November 28, 1895, twenty-one days after the agreement to remove and rebuild was made, the said schoolhouse was, by a violent windstorm, blown down and completely destroyed, so that, as a schoolhouse, it could not be removed. Subsequently, and in the fall of 1896, the board, after requesting Townsend to build a schoolhouse and his failure to do so, built a schoolhouse on the new site, at an expense of $1,349 — differing from the destroyed house in the particular of a cupola, which cost $50. The old schoolhouse was so badly wrecked .that it could not be removed and rebuilt; and a new one of the same size constructed of similar new material would cost $1,000. Prior to the windstorm, and until its occurrence, Townsend made diligent and reasonable endeavor to procure the removal of the house, but made no such effort after its destruction. The house was continuously occupied and used by the board, for purposes of the school, and was so occupied and used up to, and including the day before its destruction.

The plaintiffs contention is, that notwithstanding the total destruction of the house by the windstorm, defendant is not excused from the performance of the contract, but is liable to respond, and must respond in damages, because of non-performance. While the defendant asserts the claim, that the subject-matter of the contract, the old schoolhouse, was destroyed by God, without any fault of his, so that the contract with respect to the removal and rebuilding of the house, became impossible of performance, and in law and good conscience, he is excused and released from the obligations of it, in that regard.

The question presented is an interesting one, and rather unusual, from the fact that it rarely arises. The precise question we have here has not frequently, if at all, engaged the attention of the courts of the state. If our court of last resort or any reviewing court of the state, has, at any time entertained and considered the proposition, or made any ruling with reference to it, the fact has not been brought to our notice, and it would seem that, so far as any reported adjudication by our courts is concerned, the proposition is a new and undecided one. The courts of last resort of other states and countries, however, have dealt with the matter, and reported cases there are in plenty, blazing the way and evolving a reasonable rule by which the rights of parties may be correctly measured.

It is a general rule that inevitable accident, or unavoidable casualty, making strict performance of an agreement impossible, does not absolve a man from his contracts. In general they must be performed or their non-performance compensated. There is an exception to this rule, as well established as the rule itself, that in contracts in which performance depends upon the continued existence of a certain person or thing, a condition is implied that the impossibility of performance, arising from the perishing of the person or thing, shall excuse the performance. The implication arises, notwithstanding the unqualified character of the *734promissory words of the contract, because, from the nature of the contract, it is apparent that the parties contracted upon the basis of the continued existence of the particular person or thing. To this effect is the purport of nearly all the decided cases. Mr. Beach, in the first volume of his work on the Modern Taw of Contracts, sec. 217, clearly and concisely states the rules of law obtaining in such controversies, as follows :

> “ The general doctrine that, when a party voluntarily undertakes to do a thing without qualification, performance is not excused because by inevitable accident or other contingency not foreseen, it becomes impossible for him to do the act or thing which he agreed to do, is well settled. But it is equally well settled that when performance depends on the continued existence of a given person or thing, and such continued existence was assumed as a basis of the agreement, the death ot the person or the destruction of the thing puts an end to the obligation.”

It will be observed that the contractor is not excused from performance of his contract, as a matter of course, whenever performance becomes impossible through the act of God, or inevitable casualty, but only in contracts in which such inevitable accident is expressly provided against, or the continued existence of the subject-matter of the contract is assumed, by both the contracting parties, as a basis of the agreement; and the class to which a given contract belongs is to be ascertained and determined, only, from an examination and consideration of the terms and stipulations of the particular contract.

Among the unforeseen happenings, effective to excuse the performance of a contract, are included extraordinary floods, storms of unusual violence, sudden tempest, sudden death and the like. They are said to be unavoidable, inevitable casualty, or act of God, and in proper circumstances, excuse non-performance of a contract. That is to say, the acts of the Almighty are not within the contract, and were not considered. The parties did not assume to direct or guard against the unknown and unknowable acts of God, but made their contract with reference to present existing conditions, mutually relying on a beneficent Providence, and hoping for a continuance of the favorable conditions; and if the favor is withdrawn, it is the act of Providence, may be a calamity, to be deplored of course, but for which neither is to blame or to be held responsible. The performance of the contract, in such case, becomes impossible without the fault of either party, and is excused.

Does the case at bar fall within the general rule, or within the exception so plainly stated? This, as has been stated, must and does depend upon the nature of the contract in question. The precise wording of the contract with respect to the removal and rebuilding of the schoolhouse is as, follows:

> “Said James B. Townsend further agrees that within said time (60 days), to remove the present schoolhouse, located on the southeast corner of sec. 18, * * * to the above described premises (the new site) and rebuild and reconstruct the said building so that it will be in suitable and proper condition for school purposes, * *

From a careful reading of this provision of the contract, it is quite apparent that both parties assumed and relied on the continued existence of the schoolhouse, and neither one contemplated, much less provided against its destruction, or stipulated for or against liability to make compensation as damage, in the event of its ceasing, from any cause, to exist. The contract is for the removal and rebuilding of a particular school building — the one situate on the southeast corner of sec. 18. No other *735building was then in contemplation or consideration. They could as well have provided for the removal and reconstruction of some other building — of a building — or the construction of a new one, if such was their agreement. But not so. Reasonably construing the contract, both assumed and presumed the school building, desired and necessary to be removed, would continue to stand and exist as a schoolhouse, and they made their contract for its removal and rebuilding, so it would be in proper condition for school purposes; and, under the rule stated, this manifestly belongs to the group or class of contracts which form, an exception to the general rule, in that, the continued existence of the schoolhouse as a distinct entity was assumed, by both parties, as a basis of the agreement, and its destruction having been wrought by inevitable accident or act of God, for which neither one is to blame, the performance of its stipulations is impossible, and is excused.

*Cable &*Parmenter, for plaintiff.

*W. B. Richie*and *W. H.*Leete, for defendant.

We "perceive no error in the record, and the judgment is affirmed, with costs.