(g) Williams v. Lloyd, W. Jones, 179; s. c. nom. Williams v. Hide, Palmer, 548. In this case the declaration stated, that the plaintiff delivered a horse to the defendant, which the defendant promised to redeliver upon request; and that, although he was requested to redeliver the horse, he refused. The defendant pleaded that the horse was taken sick and died, and that the plaintiff made the request after the horse was dead. To this plea the plaintiff demurred, and judgment was given to the defendant. See also Lord v. Wheeler, 1 Gray, 282; Oakley v. Morton, 1 Kern. 25; Harmony v. Bingham, 2 id. 99.

(h) Thus in Bullock v. Dommitt, 6 T.R. 650, it was held, that a lessee of a house who covenants generally to repair, is bound to rebuild it, if it be burned by an accidental fire. And Lord Kenyon said: "The cases cited on behalf of the plaintiff have always been considered and acted upon as law. In the year 1754, a great fire broke out in Lincoln's Inn, and consumed many of the chambers, and among the rest those rented by Mr. Wilbraham; and he, after taking the opinions of his professional friends, found it necessary to rebuild them. On a general covenant like the present, there is no doubt but that the lessee is bound to rebuild in case of an accidental fire; the common opinion of mankind confirms this, for in many cases an exception of accidents by fire is cautiously introduced into the lease to protect the lessee." So in Brecknock Co. v. Pritchard, 6 T. R. 750, it was held, that on a covenant to build a bridge in a substantial manner and to keep it in repair for a certain time, the party is bound to rebuild the bridge though broken down by an unusual and extraordinary flood. So in Atkinson v. Ritchie, 10 East, 530, the master and freighter of a vessel of 400 tons, having mutually agreed in writing, that the ship, being fitted for the voyage, should proceed to St. Petersburg, i See ante, vol. i., p. *459, n. (f). And see Pothier, Traite des Obligations, pt 1, ch. 1, sec. 4. § 2; Stray v. Russell, 28 L. J. Q. B. 279; 29 ib. 116; Stevens v. Webb, 7 C. & P. 60; Wilkinson v. Lloyd, 7 Q. B. 27.

1 It was declared in Cunningham v. Dunn, 3 C. P. D. 443, following Ford v. Cotesworth, L. R. 4 Q. B. 127, that where neither party is ready to perform his undertaking because both are prevented by some superior power, neither party can maintain an action against the other. Where a contract was for the delivery of a portion of a particular crop of potatoes to be grown on specific fields, and the crop fails owing to a blight, without any fault on the seller's part, performance is excused. Howell v. Coupland, L R. 9 Q. B. 462; affirmed in the Court of Appeal, 1 Q. B. D. 258. The performance of an agreement to play the piano at a concert was excused because of the inability of the performer to play through illness, in Robinson v. Davison. L. R. 6 Ex. 269; and in Spalding v. Rosa, 71 N. Y. 40, of an opera troupe to perform because of the sickness of Wachtel, the leading tenor and "attraction." But the closing of a school on account of small-pox is not such an act of God as will excuse a school district from liability to a teacher for his services, Dewey v. Alpena School District, 43 Mich. 480; nor where one contracts to famish capital, a financial panic is no excuse for his failure to do so, McCreery v. Green, 38 Mich. 172.

performance * of the contract is not excused by an act of God, where it still may be substantially carried into effect, although the act of God makes a literal and precise performance of it impossible. (i)

If one for a valid consideration promises another to do that which is in fact impossible, 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. So if it becomes impossible by contingencies which should have been foreseen and provided against in the contract, and still more if they might have been prevented, the promisor should be held answerable. So if the impossibility applies to the promisor personally, there being no natural impossibility in the thing, this will not be a sufficient excuse. (j)1 But if one promises to do what and there load from the freighter's factor a complete cargo of hemp and iron, and proceed therewith to London, and deliver the same on being paid freight, etc.; it was held, that the master, after taking in at St. Petersburg about half a cargo, having sailed away upon a general rumor of a hostile embargo being laid on British ships by the Russian government, was liable in damages to the freighter for the short delivery of the cargo, though the jury found that he acted bona fide and under a reasonable and well-grounded apprehension at the time, and a hostile embargo and seizure was in fact laid on six weeks afterwards. And the cases from 6 T. R., above cited, were approved. So in Gilpins v. Consequa, Pet C. C. 86, it was held, that it is no excuse for the nonperformance of a contract to deliver "prime," "first-chop" teas, that the season of the year when the teas were to have been delivered, was unfavorable to the best teas being in market. Again, in the leading case of Paradine v. Jane, Aleyn, 26, where, to an action of debt for rent, the defendant pleaded that a certain German Prince, by name Prince Rupert, an alien born, an enemy to the king and kingdom, had invaded the realm with a hostile army, and with the same force had entered upon the defendant's possession, and him expelled and held out of possession, whereby he could not take the profits; upon demurrer the plea was held bad. And this difference was taken, "that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. But when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." See also Huling v. Craig, Addis. 342; Harmony v. Bingham, 2 Kern. 99; and Exposito v. Bowden, 4 Ellis & B. 963, 30 Eng. L. & Eq. 336, reversed in 7 Ellis & B. 768.