Page:Federal Reporter, 1st Series, Volume 9.djvu/445

 430 ���FEDE-^AL r.F.POnTKR. ���'In The Harr'iman, Wall. jT2, tho siipreœe court say: ■ "The principle delliuiiile fnjni the auLliorities is that if what is agreed to be doue is possible and lawful, it must be doue. Difliculty or improbability of accomplishing the undertalting will not avail the defendant. It must be shown that the thing cannot by any means be effected. The answer to the objection of hardship in all such cases is that it might have been guarded against by a proper stipulation;" �And cite with approbation Blight v. Page, B. & P. 295, where Lord Kenyon held that a charterer -who agreed to load a vessel with barley at Liebeau, but did not, beoause the Russian government had forbid- den the exportation of barley, was liable for the breach of his con- tract, saying : �"If a man undertake what he cannot perform, he shall answer for ifc to the person with whom he undertakes. I am always desirons to apply the settled principles of the law to the regulation of commercial dealings." �To the same effect is the ruling in the case of West v. Steamer UwcZc iSam, MacAUister, 505, and the citations of comments in Maeh- lachlau, L. of M, S. 543. But if this certificate and the letter from the master to Hop Kee of March 4th are not priina facie evidence of the facts that the vessel was found unfit to carry passengers, and the refusai thereon of the local authority to allow her to sail with them, what becomes of the defence that this contract could not be per- formed by the defendant because it was contrary to the law of the place of performance^ — Hong Kong ? This certificate and letter are the only evidence of such illegality, and withont them there would be no pretence of an excuse for the non-performance of the contract on the part of the defendants. �It is also alleged in the answer, and testified to by the master, that when he arrived in Hong Kong, Hop Kee told him that he had not eecured any freight or passengers for the Garibaldi ; and upon this it is claimed that the libellants were first in fault, and this was the controlling reason why the contract was considered at an end by the master and Hop Kee. But, admitting that Hop Kee had not secured any freight or passengers when or before the Garibaldi arrived at Hong Kong, it does not follow by any meanS that the libellants were therefore in fault in this matter. It was not agreed or expected that the freight or pasf engers would be engaged by the arrivai of the ves- sel in December or January, Indeed, the libellants had until the first of April to load the vessel, and as much longer as they chose, by pay- ing the demurrage agreed upon, while the defendants were not bound to be in port or receive cargo before the first of March. ' ��� �