Page:Harvard Law Review Volume 32.djvu/116

82 82 HARVARD LAW REVIEW Mere impossibility never excuses performance of a contract, but unforeseen difficulties of performance due to domestic law, destruction of the specific subject matter of the contract, or to the death or illness of a party are some- times defenses. 15 Harv. L. Rev. 63. These defenses are equitable; if the parties had contemplated the particular contingency, they would have agreed that the contract should be justly modified or terminated thereby. See Wald's Pollock on Contracts, 525, 536, 543. See also 15 Harv. L. Rev. 418; 19 Harv. L. Rev. 462. Reasonable fear of bodily harm arising subse-- quently to the making of the contract also excuses a party from performance. Lakeman v. Pollard, 43 Me. 463; Walsh v. Fisher, 102 Wis. 172, 78 N. W. 437; Sibbery v. Connelly, 22 L. T. R. 174. In a contract that is against public policy, however, the law denies recovery because the tendency of the contract was bad from the outset. Judd v. Harrington, 139 N. Y. 105, 34 N. E. 790; Egerton v. Brownlow, 4 H. L. i. Obviously one who contracts to hold a baby show does no wrong thereby. In the principal case the court should not excuse performance on the groimd of a demand by public policy, but because the parties, if they had contemplated the epidemic, would have agreed that such a happening would justly terminate the contract. Contracts — Suits by Third Persons not Parties to the Contract — Sole Beneficiary. — The deceased drew up his wife's will. She expressed her dissatisfaction with it in that the plaintiff, her niece, was not amply pro- vided for by it. He promised thereupon that if she would sign the wiU as it stood, he would leave the plaintiff enough in his testament to make up the difference, and the wife accordingly executed the instrmnent. Thereafter, when the deceased came to die, it was discovered that his wiU provided in no way for the plaintiff. Hdd, that she could recover on the promise. Seaver v. Ransom, Ct. App. (N. Y.) October i, 1918. On a contract for the sole benefit of a third party the promisee may not recover more than nominal damages for the promisor's breach. Burbank v. Gould, 15 Me. 118; Watson v. Kendall, 20 Wend. 201; Adams v. Union R. R. Co., 21 R. 1. 134, 137. Justice, therefore, demands that the beneficiary recover, since he alone suffers damage, and the promisor, otherwise, is permitted to retain valuable consideration, given for a promise never performed. The New York courts have been prevented from reaching this conclusion because of the nile laid down by former decisions, limiting the right of action by a beneficiary to cases, where the promisee owed him some duty. Vrooman v. Turner, 69 N. Y. 280, 283; Lorlllard v. Clyde, 122 N. Y. 498, 25 N. E. 292; Sullivan v. Sullivan, 161 N. Y. 554, 56 N. E. 116. See 15 Harv. L. Rev. 780-82. But to prevent injustice to some extent, the courts went to the length of declaring that a moral duty was sufficient to sustain such an action. Buchanan v. TUden, 158 N. Y. 109, 52 N. E. 724; Matter of Kidd, 188 N. Y. 274, 80 N. E. 924; De Cicco v. Schweizer, 221 N. Y. 431, 117 N. E. 807. The principal case refuses to invoke such an absurdity. It virtually permits recovery by any sol^ beneficiary and disregards completely the restriction imposed by former cases. Damages — Nature and Elements — Compound Interest. — At a partnership settlement the defendant failed to disclose his ownership of cer- tain stocks which were to be shared by the partners. The Supreme Court of Massachusetts awarded damages, with interest from the date of settlement to the date of the bill; and the case was recommitted to the master to ascertain the value of the stock, but the terms of the decree were to be settled before a single justice, who reported the case to the full court on the question whether compound interest may be computed from the date of settlement to the date of filing the bill, with a rest as of the date of filing the bill and interest there-