172 Cal. 289, 156 P. 458, L.R.A. 1916F 1 (1916)
Mineral Park Land Co. owned land in the Arroyo Seco ravine in South Pasadena, Los Angeles County.1 The defendants had contracted with public authorities for the construction of a concrete bridge across the Arroyo Seco.2 In August 1911, the parties entered into a written agreement whereby the plaintiff granted to the defendants the right to haul gravel and earth from plaintiff's land.3 The defendants agreed to take all of the gravel and earth necessary for the bridge construction, estimated at approximately one hundred and fourteen thousand cubic yards.4 Payment was five cents per cubic yard for the first eighty thousand yards, the next ten thousand yards free, and the balance at five cents per cubic yard.5
The complaint was in two counts.6 The first alleged that the defendants had taken 50,131 cubic yards of earth and gravel, becoming indebted in the sum of $2,506.55, of which only nine hundred dollars had been paid.7
The second count sought to recover damages for the defendants' failure to take from plaintiff's land any more than the 50,131 yards.8 It alleged that the total amount of earth and gravel used by defendants was one hundred and one thousand cubic yards, of which they procured 50,869 cubic yards from some place other than plaintiff's premises.9 The amount due would have been $2,043.45.10
The answer denied that the plaintiff's land contained any amount of earth and gravel in excess of the 50,131 cubic yards actually taken.11 It alleged that the defendants took from the said land all of the earth and gravel available for the work.12 The court found that the plaintiff's land contained earth and gravel far in excess of one hundred and one thousand cubic yards, but that only 50,131 cubic yards was above the water-level.1314 No greater quantity could have been taken by ordinary means or except by the use at great expense of a steam-dredger.15 The earth and gravel so taken could not have been used without first having been dried at great expense and delay.16 The court also found that the defendants took all that could have been taken advantageously to defendants or all that was practical to take and remove from a financial standpoint.17 Any greater amount could have been taken only at a prohibitive cost of ten or twelve times as much as the usual cost per yard.18
The trial court rendered judgment in favor of the plaintiff for $3,650.19 The defendants appeal from the judgment on the judgment-roll alone.20
Whether the facts found by the trial court justified the defendants in failing to take from the plaintiff's land all of the earth and gravel required for the bridge construction?21
It is equally well settled that where performance depends upon the existence of a given thing, and such existence was assumed as the basis of the agreement, performance is excused to the extent that the thing ceases to exist or turns out to be nonexistent.22 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.23
Yes. The parties were contracting for the right to take earth and gravel to be used in the construction of the bridge.24 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.25 The court found that the plaintiff's land contained earth and gravel far in excess of one hundred and one thousand cubic yards.26
Only 50,131 cubic yards was above the water-level. No greater quantity could have been taken by ordinary means or except by the use at great expense of a steam-dredger. The court further found that the defendants took all that could have been taken advantageously to defendants or all that was practical to take and remove from a financial standpoint.27 Any greater amount could have been taken only at a prohibitive cost of ten or twelve times as much as the usual cost per yard.
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.28 To all fair intents then, it was impossible for defendants to take it.29
On the facts found there should have been no recovery on the second count and the judgment is modified by deducting therefrom the sum of $2,043.45.30