Gulf & S. I. R. Co. v. Horn

• Court: United States State Supreme Court of Mississippi
• Citation: 135 Miss. 804,100 So. 381
• Docket Number: 24051
• Parties: GULF & S. I. R. Co. v. HORN. [*]
• Decision Date: 09 June 1924

100 So. 381

135 Miss. 804

GULF & S. I. R. Co. v. HORN. ^[*]

No. 24051

Supreme Court of Mississippi

June 9, 1924

Division A

CONTRACTS. Where performance of contract made impossible by event subsequent to execution, promisor discharged.

Where the subject-matter of a contract has been destroyed by an event occurring after the making of the contract rendering its performance impossible, which event could not reasonably be supposed to have been within the contemplation of the parties at the time of the contract, the promisor is discharged from the performance of the contract or the obligation to answer in damages for its nonperformance.

HON. W L. CRANFORD, Judge.

APPEAL from circuit court of Smith county, HON. W. L. CRANFORD Judge.

Action by L. G. Horn against the Gulf & Ship Island Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and judgment rendered.

Judgment reversed.

T. J. Wills, for appellant.

If there was a contract entered into, it became impossible of performance prior to the date it became effective. Horn stated that his employment was that of assistant claim agent to Major G. R. Kemp. Kemp was past seventy years of age and in the natural course of events could not continue much longer in active service. Horn was inexperienced in the work of assistant claim agent and of the claim agent's duties for a railroad company. He stated that he would not accept the position of assistant claim agent to Major Kemp except on the condition that he was to train to take Kemp's place when he should retire. Horn was not to have the position as assistant claim agent without regard to who was claim agent. The position that he was willing to accept was assistant claim agent to Major Kemp, with the agreement that he was to be promoted upon Kemp's retirement. His work as assistant to Kemp was to begin January 1, 1921. Kemp retired in August, 1920. On January 1, 1921, it was impossible for Horn to be assistant claim agent to G. R. Kemp.

If a contract had been entered into, it was impossible of performance at the time it was to become effective. This impossibility of performance discharged the contract. Sup. Lodge of Knights of Pythias v. Stein, 75 Miss. 107, 21 So. 559; People v. Eilersficken, 156 P. 458; Perlee v. Jeffcoat, 97 A. 789; Jones-Gray Const. Co. v. Stephens, 181 S.W. 659; Western Hardware & Mfg. Co. v. Bancroft-Charnley Steel Co., 116 F. 176; Martin Emerick Outfitting Co. v. Siegel, Cooper & Co., 86 N.W. 1104, 20 L. R. A. (N. S.) 1114; Bruce v. Indianapolis Gas Co., 92 N.E. 189; Johnson v. Lyon, 42 N.W. 993; Vogt v. Hecker et ux., 95 N.W. 90.

Hughes, Nobles & Lane, for appellee.

It is argued by appellant that if there were a contract it became impossible of performance before January 1, 1921, because Major Kemp was retired prior to that date, and therefore appellant could not be an assistant to him. This position is absolutely untenable.

If this were true then a contract could be breached and avoided with impunity by one of the parties to it solely and alone by disposing of a business, selling a farm, going out of business, and many other ways that could be mentioned. Appellant cannot be heard to say that the contract could be breached without damage to appellee at appellant's option.

OPINION

ANDERSON, J.

Appellee, L. G. Horn, sued appellant, Gulf & Ship Island Railroad Company, in the circuit court of Smith county, for damages claimed by him as the result of an alleged breach of contract of employment of appellee by appellant as assistant claim agent on appellant's line of railroad, and recovered a judgment of two thousand three hundred dollars from which appellant prosecutes this appeal.

One ground urged for reversal by appellant is that the trial court erred in refusing its request for a directed verdict in its favor.

In considering this question all that appellee's evidence either proves, or tends to prove, material to his case, must be taken as true. There is no conflict of evidence whatever as to the controlling facts except as to one point. They are as follows: B. E. Eaton, at the time of the occurrence of the facts of this case, was general counsel for appellant, and T. J. Wills was general attorney. G. R. Kemp was claim agent for appellant. The latter had been in the service of appellant for many years; was over seventy years of age and, in the ordinary course of events, would necessarily retire in a few years from active service. The evidence shows that he had become somewhat inactive and his services were not as satisfactory as they had been. Appellant's general counsel Eaton, conceiving it to be good policy, under the circumstances, to employ an assistant claim agent to be in training with a view of taking Kemp's place on his retirement, discussed the matter with appellant's general attorney Wills, who for some years had been acquainted with appellee. As a result of that conversation, Wills approached appellee with a view of his employment in that capacity. Wills in unmistakable language made the situation plain. Appellee was entirely inexperienced in the duties of the place. He so stated to Wills and later to Eaton. Wills told appellee that appellant had determined to employ an assistant claim agent with a view of his training under Kemp so that he could take the latter's place when made vacant by retirement. Appellee was informed by Wills of Kemp's long service as claim agent for appellant, and the high regard in which he was held by appellant, and that an assistant would not be employed; in fact, nothing would be done by appellant without the consent and co-operation of Kemp. Later appellee visited appellant's general counsel Eaton, at the general offices of appellant at Gulfport, and talked the matter over with him. Eaton testified, and it was admitted by appellee in his evidence, that the moving cause for appellant's employment of an assistant claim agent was Kemp's advanced age and his probable early retirement as a result thereof. And Eaton stated to appellee, as Wills had, and this was admitted by appellee, that no one would be employed as assistant claim agent without the consent and co-operation of Kemp; that the latter had not been approached on the subject, but would be; and that appellee's employment depended on the result.

Appellee testified, and for the purposes of the question under consideration his evidence must be taken as true, that in July, 1920, appellant employed him as assistant claim agent under Kemp, for an indefinite period at a salary of one hundred seventy-five dollars per month; his term of employment to begin January 1, 1921. Appellant's evidence...