Berg v. Erickson

• Decision Date: 08 July 1916
• Docket Number: 4519.,4518
• Citation: 234 F. 817
• Parties: BERG v. ERICKSON (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

234 F. 817

BERG v. ERICKSON (two cases).

Nos. 4518, 4519.

United States Court of Appeals, Eighth Circuit.

July 8, 1916

Syllabus by the Court.

E., a resident of Kansas, in April, 1913, showed to B., a resident of Texas, who had had no experience of Kansas grass, or of the effects upon it of droughts, which were not unusual in some parts of Kansas, certain pastures in which he proposed to put, and into which he afterwards did put, B.'s cattle. Thereupon, on April 16, 1913, E. made a written contract with B. to furnish about 1,000 of his cattle plenty of good grass, salt, and water during the grazing season of 1913, and B. agreed to pay him therefor $7 a head. An act of God, the worst drought that had ever been known in Kansas made it impossible for E. to furnish plenty of good grass in July, August, September, and October of that year, the damage of B. in the sum of $20,000, but did not prevent him from furnishing plenty of good grass during May and June, and sufficient grass to keep the cattle alive and maintain their weight during the remainder of the season.

Held E. was not absolved from his liability to furnish plenty of good grass, or to pay the damages for his failure so to do by the act of God, the unprecedented drought.

Where an obligation or a duty is imposed on a person by law, he will be absolved from liability for nonperformance of the obligation if his performance is rendered impossible without his fault by an act of God, or an unavoidable accident. But this rule is not generally applicable to contract obligations.

The general rule is that one, who makes a positive agreement to do a lawful act, is not absolved from liability for the failure to do it by a subsequent impossibility of performance, caused by an act of God or an unavoidable accident, for the reason that he voluntarily contracts to perform it, without reservation or exception, which, if he desired, he could make in his agreement, thereby induces the other contracting party, in consideration of his positive agreement, to enter into and become bound by the contract and while courts may enforce, they may not avoid contracts, in the absence of fraud or some similar ground.

Where it clearly appears, from the situation of the parties at the time they made their contract and from its terms, that they must have known that its performance would be impossible unless a person or persons, as in a contract of marriage, or in a contract for personal service, as of a singer or artist, should be living at the time for the performance of the contract, and there is no express or implied warranty of his life, a condition is implied that the contractor shall be absolved from liability if performance becomes impossible without his fault by the death of the indispensable person. A like condition is implied in a contract for the delivery of a specific animal under like conditions.

There are authorities to the effect that, where it clearly appears from the situation of the parties and their contract that they must have known when they made it that its performance would be impossible unless a thing, or a condition of things, then in existence should continue until the time of performance, or unless an indispensable thing, or condition of things, not then in existence should come into existence before and be in existence at the time of performance, there also, in the absence of an express or implied warranty of the existence of the indispensable thing or condition at the time of performance, there arises an implied condition that if that thing or condition is destroyed or prevented without fault of the obligor by the act of God, or by unavoidable accident, the obligor shall be absolved from liability for his failure to perform.

The decisions of the federal courts do not go so far. The rule declared by the Supreme Court is that, although general words which cannot be reasonably supposed to have been used with reference to the possibility of an event may not be held to bind one, yet where one at the time of making his contract must have known, or could have reasonably anticipated, and in his contract could have guarded against, the possible happening of the event causing the impossibility of his performance, and nevertheless he makes an unqualified undertaking to perform, he must do so, or pay the damages resulting from his failure so to do.

C. H. Brooks, of Wichita, Kan. (J. D. Houston, of Wichita, Kan., on the brief), for appellant and plaintiff in error.

J. T. Lafferty, of Kansas City, Mo. (W. P. Hackney, of Winfield, Kan., Aikman & Aikman, of Eldorado, Kan., and L. D. Moore, of Winfield, Kan., on the brief), for appellee and defendant in error.

Before SANBORN, Circuit Judge, and REED and BOOTH, District Judges.

SANBORN Circuit Judge.

John Erickson, a resident of Kansas, made a written contract with J. C. Berg, a resident of St. Francis, Texas, on April 16, 1913, to pasture for him 1,000 steers and to 'furnish plenty of good grass, water, and salt during the grazing season of 1913' to them for $7 per head, which Berg agreed to pay. Erickson furnished the grass, water, and salt to them during May and June, but the most severe drought which had been known in that part of Kansas subsequently prevailed, and on account of that drought it was impossible for Erickson to furnish, and he failed to furnish, plenty of good grass for the cattle during July, August, and September, to the damage of Berg in the sum of about $20,000; and the main question in this case is whether Erickson is liable to pay these damages to Berg on account of his breach of his contract, or is absolved from liability for them by the impossibility of performance which resulted from the drought after the contract was made. The question was presented in this way: At the end of the grazing season Erickson claimed an agister's lien on the cattle for the agreed price of the pasturing, $7 per head, and refused to deliver them until that price was paid. Thereupon Berg replevied the cattle upon a complaint in which he alleged his ownership and right to the possession of them, and that by the failure of Erickson to furnish the agreed grass the cattle were worth $33,000 less than they would have been if Erickson had performed his contract. Erickson denied liability for the damage to the cattle, on the ground that it was caused by the drought, an act of God, and pleaded his agister's lien and his right to the possession of the cattle thereunder. He also brought a suit in equity against Berg, in which he set forth and prayed the adjudication of his agister's lien for the $7 a head, and asked further relief. Berg in his answer to this complaint denied the existence of any agister's lien, alleged Erickson's breach of his contract and his damage in the sum of $33,000, pleaded a counterclaim for these damages, and asked a judgment for their recovery.

The action in replevin and the suit in equity were tried together by the court below without a jury by consent of the parties. The court decided that Erickson had an agister's lien upon the cattle for the value of the grass furnished in the months of May and June, and for certain expenses which he incurred and the value of certain services which he rendered in caring for the cattle when they were ill, and in feeding them at the end of the grazing season, to the amount of $2,999.41, and rendered a judgment in the action in replevin for the return to him of the cattle, or for the payment to him of that amount. The court also held that Erickson was absolved from liability for his breach of his contract to furnish plenty of good grass by the unusual drought, and it rendered a decree in the suit in equity that Berg was indebted to Erickson in the sum of $2,999.41, that Erickson should have judgment for this amount in his action in replevin, and that Berg should take nothing on account of the damages he sustained by reason of Erickson's breach of his contract. Berg challenges the judgment by writ of error, and the decree by an appeal.

Erickson agreed to furnish plenty of good grass to the cattle throughout the grazing season of 1913. He failed to perform this contract, to the damage of Berg in the sum of $20,000, because the unprecedented drought made it impossible for him so to do. Did this impossibility of performance, which arose subsequent to the making of the contract, out of the unusual drought, the act of God, relieve Erickson from liability for the damages inflicted upon Berg by his failure to perform his contract? An examination of the authorities and reflection have satisfied that the answer to this question must be deduced from a correct construction of the agreement of these parties under the following principles of law, which, notwithstanding the fact that there are confusing and conflicting decisions on cognate questions in the books, are established by the more convincing reasons and the greater weight of authority:

Where an obligation or a duty is imposed on a person by law, he will be absolved from liability for nonperformance of the obligation if his performance is rendered impossible without his fault, by an act of God or an unavoidable accident. But this rule is not generally applicable to contract obligations.

Whether or not one, who by contract imposes upon himself an obligation or duty, is absolved from liability for his nonperformance by a subsequent impossibility of performance caused, without his fault, by an act of God or an unavoidable accident, depends upon the true construction of his contract. The general rule is that one, who makes a positive agreement to do a lawful act, is not absolved from liability for a failure to fulfill his covenant by a subsequent impossibility of performance caused by an act of God, or an unavoidable...