97 Ga. 441 | Ga. | 1895
A distress warrant in favor of Mrs. Davis against one Mercer was levied on certain personalty, which was
It has been frequently decided that an advertisement of property for which a forthcoming bond has been given is unnecessary, when such property has been consumed, or otherwise disposed of, so as to render it impossible for the obligors in the bond to deliver the same to the levying officer on demand. Lassiter v. Byrd & Coker, 55 Ga. 606; Bowen v. Penny, 76 Ga. 743; Anderson v. Banks et al., 92 Ga. 121. These cases proceed upon the idea that where an obligor has voluntarily placed himself in a situation which renders it impossible for him to' comply with the obligation he has assumed, he is to be treated as abandoning and renouncing his contract, and consequently, committing a breach thereof. Such, unquestionably, is the true law on the subject. “As the renunciation of a contract before performance is due is equivalent to a breach, and entitles the injured party to sue immediately, so if one party by his own act makes performance of his promise impossible, the other may at once bring an action against him for a breach.” 3 Am. & Eng. Enc. of Law, 907. It is a mistake to suppose that a breach of a written obligation can result only after the time for performance
In the present case, it does not appear what actually became of the property levied on and replevied; but we are unable to perceive what material difference this can make, when the defendants expressly admitted that it was not within their power to produce it, and thus conceded that if a demand for it had been made by the officer, the same would have been fruitless. The physical impossibility to produce is the important fact, and not the causes which brought this impossibility about, unless the inability on the part of the defendants arose through no fault on their part. As to this, they offer no excuse or defense. They merely insist that there has been no breach of their bond, because the surrender of the property was never demanded of them by the levying officer.