CONTRACTS - INTERVENING IMPOSSIBILITY - NATURE OF EXCUSE UNDER CASUALTY CLAUSE

The plaintiff sought to compel the performance of a contract by which the defendant obligated himself to make deliveries of logs in specified months. The contract contained the following casualty clause: "And the seller is not liable for delay or nonshipment or for delay or nondelivery if occasioned by . . . strikes, lockouts, or labor disturbances. . . . Buyers agree to accept delayed shipment and/ or delivery when occasioned by any of the aforementioned causes, if so required by the seller, provided the delay does not exceed thirty days." When performance got under way, the longshoremen's strike intervened and for the period of three and a quarter months, the duration of the strike, the defendant was unable to make deliveries. After the strike deliveries were made for the remaining months.

The defendant contended that performance was permanently and not merely temporarily excused during the months of the strike. Held, for defendant. The contract clearly excuses non-performance and not mere non-delivery during the specified periods. Dant & Russel, Inc. v. Grays Harbor Exportation Co., (C. C. A. 9th, 1939) 106 F. (2d) 911.