Taylor v. Caldwell
In the Queen's Bench, 1863.
Best & S. 826
Blackburn, J.
In this case the plaintiffs and
defendants had, on May 27th, 1861, entered into a contract by which the
defendants agreed to let the plaintiffs have the use of The Surrey Gardens and
Music Hall on four days then to come, viz., June 17th, July 15th, August 5th,
and August 19th, for the purpose of giving a series of four grand concerts, and
day and night fetes, at the Gardens and Hall on those days respectively; and the
plaintiffs agreed to take the Gardens and Hall on those days, and pay £100 for
each day.
. . . The agreement then proceeds to
set out various stipulations between the parties as to what each was to supply
for these concerts and entertainments, and as to the manner in which they should
be carried on. The effect of the whole is to show that the existence of the
Music Hall in the Surrey Gardens in a state fit for a concert was essential for
the fulfillment of the contract, such entertainments as the parties contemplated
in their agreement could not be given without it.
After the making of the agreement,
and before the first day on which a concert was to be given, the Hall was
destroyed by fire. This destruction, we must take it on the evidence, was
without the fault of either party, and was so complete that in consequence the
concerts could not be given as intended. And the question we have to decide is
whether, under these circumstances, the loss which the plaintiffs have sustained
is to fall upon the defendants. [The damages claimed in the declaration were for
moneys paid by the plaintiffs in advertising the concerts and for sums expended
and expenses incurred by them in preparing for the concerts.] The parties--when
framing their agreement evidently had not present to their minds the possibility
of such a disaster, and have made no express stipulation with reference to it,
so that the answer to the question must depend upon the general rules of law
applicable to such a contract.
There seems no doubt that where there
is a positive contract to do a thing, not in itself unlawful, the contractor
must perform it or pay damages for not doing it, although in consequence of
unforeseen accidents the performance of his contract has become unexpectedly
burdensome or even impossible. . . . But this rule is only applicable when the
contract is positive and absolute, and not subject to any condition either
express or implied;
If Jones promises to sell his boat to Smith on the condition that Smith pay $30,000 by Tuesday, Jones has not obligation to sell if Smith fails to pay $30,000 by Tuesday.
An unconditional obligation is what the court means by a "positive and absolute" one. It contrasts this with a conditional obligation that only binds the promisor if the condition is fulfilled.
and there are authorities which, as we think, establish the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfillment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor.
The court's view is that the owner of the hall promised the concert promoter the use of the hall
(b) on the condition that the hall exist at the time for the performances.
There seems little doubt that this
implication tends to further the great object of making the legal construction
such as to fulfill the intention of those who entered into the contract. For in
the course of affairs men in making such contracts in general would, if it were
brought to their minds, say that there should be such a condition....
We think, therefore, that the Music
Hall having ceased to exist, without fault of either party, both parties are
excused, the plaintiffs from taking the gardens and paying the money, the
defendants from performing their promise to give the use of the Hall and Gardens
and other things. Consequently the rule must be absolute to enter the verdict
for the defendants.
Rule absolute.