Page:Harvard Law Review Volume 32.djvu/833

797 IMPOSSIBILITY OF PERFORMANCE OF CONTRACTS 797 eminent to deny him the right to make further imports, "and thus he was practically prevented" from performing his contract. It does not appear from the case whether or not the defendant could by using the first instalment of pulp imported by him for the purpose of performing the plaintiff's contract have performed that contract, even though subsequent imports would have been shut off by the government, and the language of the opinion is apparently broad enough to cover either alternative. If the re- fusal of further import Hcenses in case of noncompHance with the regulation would have made performance of the contract in ques- tion impossible, the decision is limited to a holding that impossi- bility of performance because of administrative prevention includes a case in which no prevention had actually taken place, but the administration had the power and the almost certain intention, if its regulations were disregarded, of taking action which would have prevented performance. Even if so hmited the case lays down a doctrine which, if fol- lowed by American courts, may prove to be of considerable im- portance in this country, since our own administrative regulations were frequently supported by a potential rather than by an actual exercise of statutory authority, such statutory authority being however sufficient if exercised to have rendered performance of the contract in question impossible. It is by no means clear, however, that American courts will adopt this view of the matter. Such a view was in fact rejected in the only American case which has come to the writer's attention in which the point was raised, this being the case of Mawhinney v. Millbrook Woolen Mills, Inc}"^ In that case the defendant had de- layed performance of a civilian contract because of demands by government officers that preference be given to work which the defendant had undertaken to perform for the Quartermaster Corps of the Army. It was admitted that the government might have placed an order with the defendant under section 120 of the National Defense Act, which order would have been entitled to priority under that act, and would have excused the defendant for his failure to carry out his contract, but the court held that what had been done did not amount to the placing of an order under that act and rejected the argument that the power of the execu- " 172 N. Y. Supp. 461 (1918).