It is obvious that the case is not one where the performance of the contract was a physical impossibility, as where one agreed to sell a horse, and the horse died, or to make cider from certain apples, which were immediately destroyed by fire. It is rather the case of one refusing to receive goods bargained for, because it had become impossible, through accident, for him to make a contemplated use of the goods. It is clear that such cases are not within the rule that one is released from a contract, when contingencies must be provided for in the contract if one would avoid the consequences. See Beebe v. Johnson, 19 Wend. 500 (32 Am. Dec. 518); Dermott v. Jones, 2 Wall. 1; The Harriman, 9 Wall. 161; Blight v. Page, 3 Bos. & P. 295, note; Jones v. U. S., 96 U. S. 24. This doctrine is well supported by authorities cited in the opinions of the federal cases above referred to. See, also, Ford v. Cotesworth, L. R. 4 Q. B. 127. A distinction is sought to be drawn between the cases of the class mentioned and those where the contract may be said to contemplate the continued existence of a particular person or thing which is the subject of the contract. This rule has been applied to the case of the rental of a music hall destroyed by fire, an apprentice who became ill, and could not render personal service, and a woman whose illness prevented her from performing as a pianist; but it was held not applicable to a case where one contracted to manufacture a certain iron work, and the mill was destroyed by fire. It was said: * * * "There was no physical or natural impossibility inherent in the nature of the thing to be performed, upon which a condition that the mill should continue can be predicated. True, the contract specifies the mill as the place, but it necessarily has no importance except as designating the place of delivery." Booth v. Mill Co., 60 N. Y. 491. In Taylor v. Caldwell, 3 Best & S. 826, A. agreed with B. to give him the use of a music hall on specified 115 MICH.-2. days, for the purpose of holding concerts. The hall was burned, and both parties were held discharged. Blackburn, J., said: "The principle seems to us to be that, in contracts in which performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance, arising from the perishing of the person or thing, shall excuse the performance." And it is said in Dexter v. Norton, 47 N. Y. 62 (7 Am. Rep. 415): "The reason given for the rule is because, from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the particular person or thing.” That there are cases where such an inference is reasonable is obvious, as in cases of contract of marriage, and perhaps the case of the music hall; but it ought not to be said to be apparent, unless the character of the contract is such as to clearly disclose such intention, and there is danger that courts, in their desire to relieve contracting parties in hard cases, may extend it to contracts where the implication is not apparent. The supreme court of Missouri held it not applicable where an insurance company claimed that a contract by which an agent was employed for five years was terminated by its insolvency (Lewis v. Insurance Co., 61 Mo. 538); and this court held a school district liable for the wages of a teacher, though it was found necessary to close the school, by reason of the prevalence of smallpox. See Dewey v. School Dist., 43 Mich. 480, 38 Am. Rep. 208, and note. See, also, 2 Smith, Lead. Cas. (8th Ed.) 36. In the case before us, the subject-matter of the contract was the procurement of freight to be transported. Ward undertook to give his time to this, and did so. On the part of the defendants a promise to pay was made. Ward performed his promise, and the defendants decline, not because they cannot pay, which is certainly a physical possibility, but because it has become inconvenient for them to transport the goods owing to the loss of their vessel. The parties had agreed that Ward was to secure all the freight for transportation by this line that he could obtain, for which he was to receive $1,000, one-third of which sum was to be paid by the defendants. They were under no obligation to Ward to transport any of it in the Ohio, or at all, for that matter. The share the Ohio would transport would depend upon circumstances not within Ward's control. Had the defendants immediately substituted another boat for the Ohio, Ward would not have been discharged from the obligation of the contract, which would have been susceptible of performance. The case is not dissimilar from one whereby the captain of the Ohio should have agreed with the owner of goods, without qualification, to transport them, both parties expecting them to be transported in the Ohio. The loss of the vessel would not relieve the owners from the contract, as the freight could as well be transported in another vessel. If the contract bound defendants to transport the goods in the Ohio, the rule would be different. But it did not. In fact, it did not bind them to transport them at all. Ward, as their agent, was to secure the freight, but there is nothing in the record that shows that Ward had a right to insist that it be transported by defendants. His contract was performed when he secured the freight, and defendants had no obligation but to pay. Ward having fully performed his contract, a declaration upon the common counts was proper. Upon the undisputed testimony, the plaintiff was entitled to recover, and the court might properly havė directed a verdict. It therefore becomes unnecessary to consider other questions. The judgment is affirmed. The other Justices concurred. MCCURDY v. NEW YORK LIFE INSURANCE CO. 1. ATTORNEYS AT LAW-EMPLOYMENT-RETAINER ESTOPPEL. An insurance company which forwards from the home office a check payable to the order of an attorney as a retainer fee in proceedings to be instituted, and which is kept constantly advised of what he does in its behalf, cannot question the fact of his employment. 2. SAME-PROSECUTION FOR CRIME-INTEREST OF PRIVATE PARTIES -PRELIMINARY PROCEEDINGS-PUBLIC POLICY. Public policy does not forbid the employment of an attorney by private parties to prepare for presentation to the prosecuting attorney a statement of the facts and the law applicable to an alleged case of embezzlement, to draft the complaint in justice's court, and to attend the examination of the accused, with a view to having him brought to justice if guilty of the crime charged. 3. SAME ENTIRE CONTRACT-ILLEGAL PROVISION-ASSISTANCE IN PROSECUTION. But if the contract is entire, and contemplates the rendition not only of services in the preliminary proceedings, but of assistance to the prosecuting attorney in the circuit court, it is in contravention of 1 How. Stat. § 560, prohibiting attorneys who have received compensation from any person interested in prosecuting a person charged with felony from aiding in the prosecution, and no recovery can be had thereunder. Error to Shiawassee; Smith, J. Submitted October 8, 1897. Decided November 17, 1897. Assumpsit by John T. McCurdy against the New York Life Insurance Company for professional services. From a judgment for plaintiff, defendant brings error. Reversed. Fitz Gerald & Barry (Francis A. Stace, of counsel), for appellant. John T. McCurdy, in pro. per. MOORE, J. Plaintiff, a lawyer, recovered a judgment of $77 against defendant for professional services rendered in a criminal proceeding instituted by the defendant company against one of its agents for embezzlement. A great many assignments of error are made by counsel for defendant company. So far as they relate to the proof of the employment of plaintiff by defendant, we do not think it would be profitable to discuss them, for the fact that defendant knew of and approved of the employment of plaintiff is conclusively shown by the acts of defendant company. The check of the company issued at the home office for $25, payable to the order of Mr. McCurdy, was forwarded to him as a retainer fee, and the company was kept advised of what he was doing; so that, if any testimony upon that branch of the case was improperly admitted, it was harmless error. The record shows that the work done by Mr. McCurdy was done in preparing a presentation of the facts and the law applicable to the case, and presenting them to the prosecuting officer, conferring with the persons representing the company, drafting the complaint in justice's court, attending the examination in justice's court, drafting the information which was filed in the circuit court, resisting a motion to quash the information, and rendering such assistance in the preparation and prosecution of the case as he could render. Upon the trial, Mr. McCurdy withdrew any claim for services in the circuit court. Judgment was rendered upon the verdict, and costs were allowed to the plaintiff. We think there is but one question necessary to discuss; that is, can a lawyer recover for professional services rendered to a corporation, in the preparation and trial of a criminal case, set in motion by the complaint of an officer of said corporation? Counsel for defendant answer this question in the negative, claiming that only the people and the respondent are interested in a criminal prosecution, and that a contract by a lawyer to render services in such a case at the employment of private parties |