Page:Harvard Law Review Volume 32.djvu/835

IMPOSSIBILITY OF PERFORMANCE OF CONTRACTS 799 After a preliminary period of uncertainty the plan was adopted in September, 191 7, of determining priorities by means of cer- tificates issued by the Priorities Committee of the War Industries Board under regulations drafted by that committee and approved by the Secretaries of War and of the Navy. These certificates were intended to be obeyed and were obeyed by the vast majority of the producers of the country, and the government possessed ample powers either by compulsory order or otherwise to compel compliance in any case in which compHance should be refused. No doubt under ordinary conditions it would be the duty of a producer to let nothing stand in the way of the performance of his solemn engagement short of actual compulsion by authority of law, but, under the pecuhar conditions existing during the war, a refusal to act as requested by the executive until actually com- pelled to do so would have merely subjected the person refusing to the imputation of obstructing the government by a failure readily to cooperate with it without in any way benefiting the other party to the contract. It would seem therefore that a court is taking an entirely artificial and unrealistic position in holding that a practice dehberately adopted by the executive and enforceable through the exercise of powers granted by the legislature will not be treated by the judiciary as governmental action which private citizens are justified in obeying. The refusal by the courts so to treat it will result, from the standpoint of defendants, in protecting only the unusually cautious and the unusually recalcitrant, and on the side of plaintiffs, in permitting the recovery by those few consumers only who had so little regard for the necessity of cooperation with the government as to refuse to acquiesce in such cooperation by the persons with whom they had made contracts. It may be urged however that while this argument may be sound under such circumstances as those presented by the Hulton case, it is inapplicable to the case of a voluntary contract between a producer and the government, since so to apply it would, as Judge Kelby suggests in the Mawhinney case, supra, enable pro- ducers to take the initiative in obtaining profitable contracts with the government and then to use such contracts as an excuse for disregarding their lucrative orders from private customers. It must be borne in mind, however, that it is not the mere ex- istence of the government contract but the insistence on the part