Page:Harvard Law Review Volume 12.djvu/521

501 NOTES. 501 its demonstrative value. Thayer, Preliminary Treatise on Evidence, P- 525- It is to be noticed that there is a class of decisions much like the present in which there is a distinct conflict of authority. Where, unlike the principal case, there is no eyewitness to the accident, some courts allow the admission of past habits as sole proof of care or of negligence, as the case may be. Chicago, A*. /. &> P. Ry. Co. v. Clark, 108 111. 113. But there is on principle no distinction between this- class of cases and those of which the present is an example. Such evidence should be always excluded. And the attitude of some courts in thus disregarding the true nature of the tribunal to which this proof is offered can only be ex- plained by a desire to prevent hardship. Such decisions, then, as Chicago^ Ji. J. d^* F. Ry. Co. v. Clark, supra, afford small reason for doubting the soundness of the result reached in the principal case. Impossibility as a Defence. — That land taken by compulsory pro- cess is freed from restrictive covenants when their performance becomes impossible, is ruled in a recent English case. Avderson v. Afanchester, S. &• L. R. R., 52 Solicitors' Journal, 396. A railway company were authorized by statute to take certain premises. A part of this land was then held under a lease with a covenant for quiet enjoyment. The lessor conveyed the reversion to the railway company. The railway company afterward used the property in a way that would clearly have made them liable to the lessee upon the covenant had they been ordinary assignees. But the Divisional Court held that this assignment was com- pulsory and that the covenant did not run with the land against the com- pany, since that covenant only contemplated voluntary assignees. To en- force it in the face of the statute, the court say, would be to enforce an impossibility. A man may bind himself by an absolute contract to perform at all events or to do the impossible. But there is an accepted doctrine in qualifica- tion. Where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the parties when the con- tract was made, a party will not be held liable by mere absolute words which, though large enough to include the contingency, were not used in view of it. Baily v. De Crespigny, L. R. 4 Q B. 180; Harrison v. Mun- caster, [1891] i Q. B. D. 680. So confident are the courts of their rule and of their reason that they now assert that these provisions against various impossibilities are conditions of the original promise — that to enforce them is sim[)ly to enforce the actual contract which the parties have made. Ho7v- cllv. Coupeland, L. R. i Q. B. D. 258 ; Chicago, AI. 6- St. P. R. R. v. Hoyt, 149 U. S. I. But is it not an absurdity to make the test the contemplation of the parties — a question of fact — when it is notorious that the parties have none of these contingencies in mind? Parlies in contracting commonly contemplate performance, not breach. Now the accepted statement, it is seen, looks to a solution of the problem upon legal grounds ITy this interpolation of a fictitious condition. The result reached is just ; but is the method justifiable? Where one is under a lej^al obligation he must usually perform to the letter. Such was the rule anciently: fraud, ille- gality, duress, and the like did not excuse at law. g Harvard Law Review, 49. So it was once of impossibility. Y. B. 22 Edw. IV. pi. 26.