73 P. 337 | Or. | 1903
after stating the facts in the foregoing language, delivered the opinion.
There is a marked distinction, not to be overlooked in this connection, between a mere disability or inability of
The rule to be deduced from the authorities is that, if one enters into a valid contract, for a sufficient consideration, to do a lawful thing, possible in itself — that is, in the nature of things — to be done, he must either carry out the contract according to its terms or answer in damages for a failure to do so. The mere impossibility of performance in fact will not be enough, but the contract must be obviously impossible upon its face before such a defense can be made : The Harriman, 76 U. S. (9 Wall.) 161. Now, applying this rule to the contract under consideration, it cannot, we think, be held that the packing of salmon in Alaska “exactly like Puget Sound fancy Sockeye” is inherently impossible. It will be readily conceded that salmon
4. This view disposes of the other question, because the promise of the plaintiff to purchase was a good consideration for the promise of the defendant to sell, and therefore the contract does express a consideration: Bishop, Cont. § 76. The judgment of the court below is reversed, and a new trial ordered. Keversed.