Page:Harvard Law Review Volume 32.djvu/829

793 I • IMPOSSIBILITY OF PERFORMANCE OF CONTRACTS 793 vided either expressly or by implication for the production of goods in that factory, except by denying to the government order the precedence to which it was entitled by statute. It may be argued, therefore, that the case is one in which performance had become illegal, but the legal objection is not due to any impro- priety in the contract itself, but solely to the fact that, under the existing circumstances, performance could not be given con- sistently with the fulfillment of the legal duty of giving such pref- erence to the government order as was necessary in order to carry it out on time. Should the contractor have found some means of so increasing the productivity of his plant as to perform both his contract and the government order the law would have had no objection to his doing so. It seems more accurate, therefore, to treat the case as one in which the government order, because of the legal consequences attaching to it, made performance im- possible rather than as a case of illegaHty. The case is thus sub- stantially similar to the requisitioning, or, apart from the temporary character of the impossibility, to the destruction of the factory by an act of God, and has properly been treated as at least a suspen- sive defense for failure to perform.^", In that case the court assumed that the defense was merely suspensive and that the defendant would have been compelled to perform after completing the government order, had the contract not been repudiated by the plaintiff prior to that time. It is be- lieved, however, that performance is not merely suspended but entirely excused provided the delay is a material one, since to re- quire performance after a long delay would be "not to maintain the original contract but to substitute a new contract for it."" Frequently, however, a government order did not require even for a time the use of the entire machinery of a plant. Where such was the case it would frequently have been possible for the manu- facturer to perform one or more of his private contracts without denying to the government order its statutory priority, but not to perform all such private contracts. It is believed that the »« Moore & Tiemey, Inc. v. Roxford Knitting Co., 250 Fed. 278 (1918). " Metropolitan Water Board v. Dick, Kerr & Co., [1918] A. C. 119. This case decides that a regulation of the Ministry of Munitions which made work on a reser- voir impossible for a considerable length of time did not suspend the contract for the work but terminated it. See, also, Andrew Millar & Co. v. Taylor & Co., [1916] 1 K. B. 402, dealing with the effect of a temporary embargo.