A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.
Plaintiff and defendants contracted to give defendants the right to haul gravel and earth from his property for a construction project. Defendants agreed to take all gravel needed for the job from plaintiff's property and to pay the latter per cubic yard taken. However, defendants only took a portion of the gravel from the plaintiffs property and even failed to pay him. Plaintiff sued defendants seeking recovery of the balance owed for the gravel taken and an amount for defendants' failure to take the entire amount from plaintiff's property. Court ruled in favor of plaintiff but deducted amount of damages to be awarded.
Is the defendant’s failure to take from the plaintiff's land all of the earth and gravel required by the defendant justified?
The parties were contracting for the right to take earth and gravel to be used in the construction of the bridge. When they stipulated that all of the earth and gravel needed for this purpose should be taken from plaintiff's land, they contemplated and assumed that the land contained the requisite quantity, available for use. The defendants were not binding themselves to take what was not there. And, in determining whether the earth and gravel were "available," we must view the conditions in a practical and reasonable way. Although there was gravel on the land, it was so situated that the defendants could not take it by ordinary means, nor except at a prohibitive cost. To all fair intents then, it was impossible for defendants to take it. "A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost."