Page:Harvard Law Review Volume 32.djvu/830

794 HARVARD LAW REVIEW weight of authority in closely analogous cases supports the view that the proper course for a manufacturer to have pursued under such circumstances would have been to have offered to each cus- tomer with whom he had a contract his pro rata share of what could have been produced over and above the government order /^ assuming the case to be one in which, for the reason just stated above, the fulfillment of the contracts after the completion of the government order would not have been required. IV Interference by the Government with Materials Needed in Production — Coal Regulations Without requisitioning either the subject matter of the con- tract or the seller's plant or tying up that plant by a compulsory order, the government might, however, make production no less impossible by interfering with the supply of some material essen- tial to production. Thus the President was given the right to regulate the distribution of coal and coke,^^ and the Fuel Ad- ministration, to which this power was delegated, in the winter of 1 918 issued the well-known "heatless days" order by which no coal could be burned on certain days except by those engaged in certain essential industries; and subsequently, through cooperation with other governmental agencies, a priority list was compiled, the effect of which was to make it impossible, in cases of shortage of coal, for industries classed as nonessential to obtain a supply ad- equate for normal production. Such regulations ^^ were from a ^2 Such is the holding of a majority of the cases dealing with a similar question arising in connection with "strike clauses" in contracts. See McKeefrey v. Connells- ville Coke & Iron Co., 56 Fed. 212 (1893); Luhrig Coal Co. v. Jones & Adams Co., 141 Fed. 617 (1905); Oakman v. Boyce, 100 Mass. 477 (1868); Jessup & Moore Paper Co. V. Piper, 133 Fed. 108 (1902); Con. Coal Co. v. Mexico Co., 66 Mo. App. 296 (1896). Some of these decisions are rested in part on an alleged custom of the coal business. A similar view has been taken by the House of Lords with regard to the effect of a clause relating to impossibility due to war . Tennants, Ltd. v. C. A. Wilson & Co., Ltd., 191 7 A. C. 495. The following are contra: Hunter Finch & Co. v. Zenith Furnace Co., 146 111. App. 257 (1909) aff'd, 245 111. 586 (1910); Coal Co. v. Ice Co., 134 N. C. 574 (1904). " See Food Control Act of August 10, 191 7, § 25. Public — No. 41 — 65th Con- gress [H. R. 4961]. " Such regulations are used merely for the piupose of illustration, and their validity imder the act above cited is assimied.