Montooth Borough v. Brownsville Avenue Street Railway Co.

Citations

• 206 Pa. 338
• 55 A. 1036
• 1903 Pa. LEXIS 714

Syllabus

<p>Street railways — Boroughs— Contract — Performance—Impossibility of performance..</p> <p>A street railway company which has entered into a contract with a, borough to build a railway on a street, is not relieved from its contract by reason of the fact that for a distance of 750 feet, the company was confined -to the use of about eleven feet only in width of the highway ; and this is especially the ease where the evidence is not conclusive that the railway could not have been constructed and operated on the street.</p> <p>Contract — Performance—Impossibility of performance.</p> <p>Impossibility of performance of a contract is in general no answer to an action for damages for nonperformance.</p> <p>Impossibility of performance, whether such impossibility arises through the fault of the promisor or not, will not constitute a valid defense to an action for a breach of a contract. If the promisor makes the promise conditional upon its continued possibility, then the risk is assumed by the promisee and he loses his right of action, if the contingency arises. But if the promisor makes the promise unconditionally, then he assumes the risk, and as a general rule he cannot set up the impossibility of performance as a defense to an action by the promisee.</p>