Sec 303

The promisee cannot, a fortiori, recover on the contract if he ought to have known the thing to have been nonexistent, or the promise to be, for other grounds, nugatory. This is illustrated in a case in which the plaintiff, a landlord, sued the defendant, his tenant, on a covenant by the latter, in which he undertook to dig from the leased premises not less than 1000 tons of clay annually, paying a specific royalty. It was held a defence that there never was as much as 1000 tons of clay on the land.1 This would have been the law even supposing both parties were innocently ignorant of the non-existence of the clay. But the defendant's case was strengthened by the fact that this non-existence was a circumstance of which the plaintiff, with due diligence, could have been aware.2

Sec 304

"If a man is bound to another in 20l. on condition quod pluvia debet pluere cras, there si pluvia non-pluit eras, the obligor shall forfeit the bond, though there was no default on his part, for he knew not that it would not rain. In like manner, if a man is bound to me on condition that the Pope shall be here at Westminster tomorrow, then, if the Pope comes not here, there is no default on defendant's part, and yet he has forfeited the obligation."3 It is true that if there are wagering contracts, they will not be enforced. But it is competent for one party to undertake to indemnify another, should a certain improbable contingency occur. All insurance contracts are to this effect. - But to constitute impossibility in the sense in which the term is here considered, it is not necessary to prove that there is no possible way in which the event in question could occur. It is enough if, according to the ordinary operation of natural laws, as they existed at the time in litigation, the event in question could not have been expected without what would be equivalent to a supernatural interposition. Of course we must take the tests of the specific period in determining the limits of these natural laws. Fifty years ago it was impossible for an event occurring in London this morning to be known in New York this afternoon; now there are no business contracts that are not affected by intelligence so received. The terra "impossible," therefore, is not to be used in an absolute sense; and it is enough to constitute impossibility that the event is so unlikely to occur that no business man could be influenced by the possibility of its occurrence. - "In matters of business a thing is said to be impossible when it is not practicable; and a thing is impracticable when it can only be done at an excessive or unreasonable cost." "'A man may be said to have lost a shilling when he has dropped it into deep water, though it might be possible, by some very expensive contrivance, to recover it. So, if a ship sustains such damage that it would not be reasonably practicable to repair her, having regard to the cost, the ship is said to be totally lost."1 But this does not apply, as will presently be seen, to risks taken by a party,2 nor to cases in which there is an alternative still open.3

When promisee knows, or ought to know,of impossibility, contract is void.

Mere improbability does not vacate agreement.

1 Clifford v. Watts, L. R. 5 C. P. 577.

2 See to same effect Ridgway v.

Sneyd, Kay, 627; Walker v. Tucker, 70 111. 527.

3 Brien, C. J., Mich. 22 ed. 4-26, adopted in Pollock on Cont. 3d ed. 372.