making the contract it was understood between the parties that the architect would act in good faith in the performance of this part of his duty. In legal effect, the contract is as if their understanding in this particular had been written into it, as one of its terms. If, under such an agreement, after the full performance of the contract, the architect willfully and fraudulently refuses to act, or dies, or becomes. disqualified, and there is no provision for such a case, the question arises whether the contractor is entitled to receive the contract price, the fact of performance being shown in some other way, or whether the entire contract falls to the ground, and the parties are left to enforce their rights under a quantum meruit. It is a general rule that if an implied condition that fails is of the essence of the contract, and enters largely into the consideration, in such a way that there can be no substantial performance under the changed conditions, the whole. contract will fail, and the parties may have reasonable compensation for what they have done in reliance upon it. * But the provision in this case for the ascertainment of their rights, in reference to the construction of the building called for by the contract is of a different kind. It is a part of the machinery provided for the ascertainment and adjustment of their rights in reference to the matters to which the contract relates. It is provided to be used only upon an implied condition that it will be available for use. If, through the death or incapacity of the architect, or his willful refusal to act, it becomes impossible to adopt this method of determining the rights of the parties, other means may be adopted, on the ground that this no longer remains as an essential term of the agreement. In all substantial particulars the contract is complete without the provision for obtaining a final certificate, and, in the case supposed, it should be treated as if the provision were stricken from the contract.

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In all the cases that we have cited under building contracts, it is held that there may be a recovery upon the contract, where the contractor's failure to obtain the architect's certificate showing performance of it is caused by the fraud or intentional misconduct of the architect. * ** * We have found no case of this kind in which it is held, on a failure to obtain an architect's certificate after performance of a contract, that the contract lost its force, and that the parties were left to their rights upon a quantum meruit. In a case like the present, we are of opinion that if an architect after the completion of a contract willfully, and without excuse, refuses to act at all, or if he acts dishonestly and in bad faith, and the contractor is thereby prevented from obtaining a certificate, the contractor may proceed with his suit without it. * * *

After telling the jury that certain conduct of Dewey would not be fraudulent in reference to the certificate, he added: "It would still have to be shown by the plaintiff that the certificate ought to have been given, and if it was shown that the work was done and the contract substantially performed, then the fact that the certificate was not given was not of any account." This last proposition was not correct in law. If the architect, acting in good faith, thought that the work was not properly done and the contract was not substantially performed, and refused the certificate for that reason, the mere fact that the certificate ought to have been given, and that the work was done, and the contract was performed, would not entitle the plaintiff to re

cover without the certificate. The parties were bound by the decision of the architect made in good faith. * * *

Because the instructions give too little effect to the requirement that the contractor shall procure a certificate from the architect before he is entitled to payment, there must be a new trial.

SECTION 7.-SUBSTANTIAL PERFORMANCE IN VARIOUS OTHER TYPES OF CONTRACTS AS CONDITIONS

BUFFALO & L. LAND CO. v. BELLEVUE LAND & IMPROVEMENT CO. (Court of Appeals of New York, 1901. 165 N. Y. 247, 59 N. E. 5, 51 L. R. A. 951.)

A vendor in selling land contracted to construct a street car line over such land, and operate cars thereon at certain specified hours "as such street railroads are usually run," until the land was sold by the vendee, and agreed, in case of default, to release its mortgage on the land, and repay the purchase money and certain liquidated damages. The road was constructed by the vendor, and operated according to contract, except during a certain winter, when its service was interrupted by heavy snow blockades, but it used all the usual means to keep its tracks clear, and operated its road as well as similar roads in the vicinity.

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O'BRIEN, J. This is an action to rescind a contract for a breach by the defendant, and to compel the latter to specifically perform certain alternative provisions thereof. * * The trial court rendered judgment for the plaintiff for the relief demanded, which was the restoration of the purchase money of the land, so far as paid, and all money paid on the mortgage by the plaintiff; but on appeal to the appellate division the judgment was reversed, and a new trial granted.

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The agreement to run passenger cars on the road as often as once every half hour was not literally or absolutely performed, and the question is whether the omission in that respect constitutes such a breach of the defendant's contract as to give to the plaintiff the right to rescind, and to demand from the defendant the restoration of the benefits received under it. We do not think that it would be a fair construction of the contract to hold that the defendant was absolutely bound to run a car every half hour each day under all circumstances and conditions, whether possible or not, or that an omission in that regard, under the circumstances and conditions found, was a breach of the contract to operate the railroad in the manner specified. The whole contract, and its purpose and object, must be brought into view, and the language employed by the parties understood in a reasonable way. Neither party intended to be bound to do things that were impossible. The construction for which the learned counsel for the plaintiff contends would be unreasonable, and would place the defendant at the mercy of the elements, since it is well known that the operation of railroads is frequently interrupted by storms such as are mentioned in the findings in this case.

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It is a well-settled rule of law that where a party, by his own contract, absolutely engages to do an act, it is his own fault and folly that he did not thereby provide against contingencies, and exempt him

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self from responsibility in certain events. In such cases performance is not excused by inevitable accident or other contingency, although not foreseen or under the control of the party. When the contract is absolute, the vis major is not an excuse for nonperformance. * But there are many contracts from which by their very nature a condition may be implied that a party will be relieved from the consequences of nonperformance, in some slight particular, where the obligation is qualified, or when performance is rendered impossible without his fault, and we think the contract in question belonged to that class.

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In this case the covenant to run the cars every half hour was qualified, not only by the nature of the contract and the act to be performed, but by the use of the words, "as such street railroads are usually run." We are of opinion that there was no substantial breach of the agreement upon the facts found at the trial, when they are all taken together, since the railroad was constructed, maintained, and operated in conformity with the agreement, when reasonably and fairly construed. * *

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The order and judgment of reversal should be affirmed, and judgment absolute ordered for the defendant.

MOHA v. HUDSON BOXING CLUB.

(Supreme Court of Wisconsin. 1916.

164 Wis. 425, 160 N. W. 266, L. R. A. 1917B, 1238.)

Plaintiff is a professional boxer, and sues the defendant to recover 221⁄2 per cent. of the gross receipts of a boxing contest held under the management of the club December 4, 1914, at Hudson, Wis. The contract was in writing, and provided in substance that the plaintiff would box Mike Gibbons of St. Paul ten rounds "to a no decision" at the defendant's boxing arena, receiving as consideration therefor 221⁄2 per cent. of the gross receipts, together with certain transportation and hotel expenses, he to deposit with a named stakeholder $100 to guarantee that he would make the weight specified in the contract, which sum in case of his failure to appear or enter the contest was to belong to the defendant; that the revised Queensbury rules, as interpreted by the referee and in compliance with the laws of this state and the rules of the State Athletic Commission should govern the contest.

The contest began, and during the second round the referee decided that the plaintiff had struck a foul blow, i. e., a blow below the belt, and stopped the contest. Neither side introduced in evidence the revised Queensbury rules, nor the rules of the State Athletic Commission, but the referee testified that the rules prohibit the striking of a foul blow, and that he stopped the contest because the other man was disabled by the foul blow.

The trial court held that the plaintiff had failed to perform his contract, and hence could not recover. From this judgment, plaintiff appealed.

WINSLOW, C. J. Plaintiff sues to recover the contract price of his professional services. In order to succeed he must show at least substantial performance of his contract. It is certain that there has been none here. He contracted to box ten rounds under certain rules. At the outset of the contest, in the middle of the second round, he violated one of the rules, and as a result thereof disabled his opponent,

and thus by his own act made substantial performance impossible. Whether this act was deliberate or not cuts no figure. It was an act which he had contracted not to do, and it prevented performance. *** It does not seem necessary to consider other questions; the considerations suggested are decisive.

Judgment affirmed.

SEWELL v. UNDERHILL.

(Court of Appeals of New York, 1910. 197 N. Y. 168, 90 N. E. 430, 27 L. R. A. [N. S.] 233, 134 Am. St. Rep. 863, 18 Ann. Cas. 795.)

GRAY, J. The plaintiff and defendant had entered into an agreement for the sale by the latter and the purchase by the former, of a parcel of land at the price of $25,000. **

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This action was brought by the plaintiff to recover the damage suffered by him through the destruction of the dwelling house, upon the theory that there had been a breach of the agreement, in the failure of the defendant to convey the house. * * The one question which is presented by the plaintiff's appeal is: Should the loss, occasioned by the accidental destruction of the building upon the premises, be borne by the vendor, or the vendee? The appellant argues that, upon principle, the loss should fall upon the vendor, and insists that the contrary view rests upon a rule of the English courts, which is not only unjust, but which is not to be regarded as conclusive upon us.

I think that it is too late to dispute the English rule, and that we must consider it as established by decisions of the courts of this state. It was authoritatively stated by Lord Eldon, in Paine v. Meller, 6 Ves. Jr. 349, 31 Eng. Repr. 1088, departing from the rule asserted in the earlier case of Stent v. Bailis, 2 P. Wms. 220, 24 Eng. Repr. 705. In Paine v. Meller the buildings were destroyed by fire before the conveyance was ready. Somewhat like the present case, there, after the acceptance of the title, a delay occurred in the preparation and execution of the deeds. With respect to that objection of the vendee, which was grounded upon the fire, Lord Eldon said: "As to the mere effect of the accident itself, no valid objection can be, founded upon that simply, for, if the party by the contract has become in equity the owner of the premises, they are his to all intents and purposes. They are vendible as his; chargeable as his; capable of being incumbered as his; they may be devised as his; they may be assets and they would descend to his heir." This case has been, repeatedly, recognized as an authority for the rule by the courts of this state. * * * A contrary view has been taken by courts in other states; but the great weight of authority is in favor of the English doctrine. *

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HAWKES v. KEHOE et al.

(Supreme Judicial Court of Massachusetts, 1907. 193 Mass. 419, 79 N. E. 766, 10 L. R. A. [N. S.] 125, 9 Ann. Cas. 1053.)

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SHELDON, J. * We need spend no time upon the numerous cases in England and in this country which the industry of counsel has brought to our notice as to the rights of parties to such agreements upon a total or partial destruction of the buildings by fire. * * * We are of opinion that in this commonwealth, when as in this case, the conveyance is to be made of the whole estate, including both lands

and buildings, for an entire price, and the value of the buildings constitutes a large part of the total value of the estate, and the terms of the agreement show that they constituted an important part of the subject-matter of the contract, it is now settled by the decisions in Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65, that the contract is to be construed as subject to the implied condition that it no longer shall be binding if, before the time for the conveyance to be made, the buildings are destroyed by fire. The loss by the fire falls upon the vendor, the owner; and if he has not protected himself by insurance, he can have no reimbursement of this loss; but the contract is no longer binding upon either party. If the purchaser has advanced any part of the price, he can recover it back. * If the change in the value of the estate is not so great, or if it appears that the buildings did not constitute so material a part of the estate to be conveyed as to result in an annulling of the contract, specific performance may be decreed, with compensation for any breach of agreement, or relief may be given in damages. * * *

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TEBEAU v. RIDGE.

(Supreme Court of Missouri, 1914. 261 Mo. 547, 170 S. W. 871,

L. R. A. 1915C, 367.)

Suit for specific performance by George Tebeau against Thomas S. Ridge and another. From a decree for complainant for less than the relief demanded,' defendant appeals, and complainant prosecutes a cross-appeal.

FARIS, J. * *Which brings us to a discussion of the plaintiff's cross-appeal and requires us to ascertain, if we can, what sort of decree should be entered. Should we affirm the case without diminution of price for the outstanding inchoate dower of Mrs. Ridge, leaving plaintiff to his action at law for relief, if any he has, or will ever have upon the facts here, or should we decree or order a decree for plaintiff after diminishing the purchase price to be paid by the value of Mrs. Ridge's inchoate dower, figured as one-third of such actual purchase price?

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There is no unanimity of decision on this question of diminution of purchase price. The cases are in much confusion and irreconcilable contrariety. Three views prevail: (1) The purchaser is entitled, as against inchoate dower, to have the purchase price diminished by such sum as represents the present value of the wife's contingent interest, estimated by the tables of mortality and by the statute of present values of estates less than a fee (in Alabama, Indiana, Iowa, New York, Massachusetts, Michigan, Minnesota, South Carolina, and Wisconsin), and in New Jersey, when refusal of the wife to convey is fraudulently brought about; (2) the view that the decree of the court may permit the vendee to retain one-third of the purchase price as an indemnity. until the wife die or convey (in Alabama and Iowa); and (3) the view that the vendee shall have no abatement of the agreed purchase price on account of the wife's refusal to relinquish her inchoate dower, on the ground usually that such abatement would serve to put upon the wife unfair coercion to relinquish a right given to her by law (District) of Columbia, Illinois, and New Jersey), unless wife's refusal was fraudulently collusive with husband, in which case rule in New Jersey is contra (New York, Pennsylvania, Virginia, Missouri).

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The last holding in this state was in Aiple-Hemmelmann Real Es