is obviously and certainly impossible is not sufficient in law to sustain a promise. But if one makes a promise, he cannot always defend himself when sued for non-performance by showing that performance was impossible; for it may be his own fault, or his personal misfortune, that he cannot perform it. He had no right to make such a promise, and must respond in damages; or if he had a right to make it in the expectation of performance, and this has become impossible subsequently-as by loss of property, for example-this is his misfortune, and no answer to a suit on the promise. There are, however, obviously, promises or contracts, which, from their very nature, must be construed as if the promisor had said, "I will do so and so, if I can." For example, if A promises to work for B one year, at $20 a month, and at the end of six months is wholly disabled by sickness, he is not liable to an action by B for breach of his contract; and there is authority and good reason for saying that he can recover his pay for the time that he has spent in B's service. A mere want of money, or a pecuniary impossibility, is not regarded by the law as an impossibility.

OF FAILURE OF CONSIDERATION.

If a promise be made upon a consideration which is apparently valuable and sufficient, but which turns out to be nothing; or if the consideration was originally good, but becomes wholly valueless before part performance on either side, there is an end of the contract, as the promise cannot be enforced. And if money were paid on such a consideration, it can be recovered back. But only the sum paid can be so recovered, without any increase or addition as compensation for the plaintiff's loss and disappointment, if there were no fraud or oppression.

If the failure of consideration be partial only, leaving a substantial, though far less valuable, consideration behind, this may still be a sufficient foundation for the promise, if that be entire. The promisor may then be sued on the promise; but he will then be entitled, by deduction, set off, or in some other proper way, to due allowance or indemnity for whatever loss he may sustain as to the other parts of the bargain, or as to the whole transaction, from the partial failure of the consideration. Thus, if he promised so much. money for work done in such a way, or as the price of a thing to be made and sold to him, if no work is done, or the thing is not made or sold, there is an end of the promise, because the consideration has failed. But if the work was done, but not as it should have been, or the thing made and sold, but not what it should have been, and the promisor accepted the work or the thing, he may now show that the consideration for his promise has partially failed, and may have a proportionate reduction in his promise, or in the amount he must pay. And if the promise be itself separable into parts, and a distinct part or proportion of the consideration failed, to which part some distinct part or proportion of the promise could be applied, that part cannot be enforced, although the residue of the promise may be.

If A agrees with B to work for him one year, or any stated time, for so much a month, or so much for the whole time, and, after working a part of the time, leaves B without good cause, the question arises whether A can recover anything from B for the service he has rendered; and at this time the question must be considered as somewhat unsettled at law. It is universally conceded that he cannot on the contract, because that is entire, and is broken by A, and therefore A has no claim under i. And it is the an

cient and still prevailing rule, that A can recover nothing in any form or way. It has, however, been held in New Hampshire, that A can still recover whatever his services are worth, B having the right to set off or deduct the amount of any damage he may have sustained from A's breach of the contract. We think this view just and reasonable, although it has not been supported by adjudication in other States. If A agrees to sell to B five hundred barrels of flour at a certain price, and, after delivering onehalf, refuses to deliver any more, B can certainly return that half, and pay A nothing. But if B chooses to retain that half, or if he has so disposed of or lost it that he cannot return it, he must, generally at least, pay what it is worth, deducting all that he loses by the breach of the contract. And this case we think analogous to that of a broken contract of service; but B's liability to pay, even in the case supposed as to goods, has been denied in New York.

A difficulty sometimes arises where A, at the request of B, undertakes to do something for B, for which he is to be paid a certain price; and in doing it he departs materially from the directions of B and from his own undertaking. What are now the rights of the parties? This question arises most frequently in building-contracts, in which there is perhaps usually some departure from the original undertaking. The general rules are these. If B assent to the alteration, it is the same thing as if it were a part of the original contract. He may assent expressly, by word or in writing; or constructively, by seeing the work, and approving it as it goes on, or being silent; for silence under such circumstances would generally be equivalent to an approval. But if the change be one which B had a right, either from the nature of the change, or the appearance of it, or A's language respecting it, to suppose would add nothing to the cost, then no promise to pay an increased price would be inferred from either an express or tacit approval. Generally, as we have seen, if A does or makes what B did not order or request, B can refuse to accept it, and, if he refuses, will not then be held to pay for it. But if he accepts it, he must pay for it. This consequence results, however, only from a voluntary acceptance. For if A choose, without any request from B, to add something to B's house, or make some alteration in it, which being done cannot be undone or taken away without detriment to the house, B may hold it, and yet not be liable to pay for it; and A has no right to take it away, unless he can do so without inflicting any injury whatever on B. This rule would apply whether the addition or alteration were larger or smaller.

It is sometimes provided in building-contracts that B shall pay for no alteration or addition, unless previously ordered by him in writing. But if there be such provision, B would be liable for any alteration or addition he ordered in any way, or voluntarily accepted.

So it is sometimes agreed that any additions or alterations shall be paid for at the same rate as the work contracted for. But we think that the law would imply this agreement if the parties did not make it expressly, although this point is not well settled.

OF THE RIGHTS OF ONE WHO IS A STRANGER TO THE CONSIDERATION.

Formerly it was held that no one who was a stranger to the consideration could enforce a promise resting upon it. But this rule has been considerably relaxed, at least in this country. Thus, if A pays to B a con

sideration, and B thereupon promises to pay C a sum of money, it has been held that C may sue B upon this promise, whether the promise were made to A or to C. So where B gave to the lessee of certain premises a written promise to take the lease and pay to A, the lessor, the rent, with the taxes, according to the terms of the lease; and B afterwards entered into possession of the premises, and occupied them with the knowledge of A, it was held that A might recover rent from B on this promise. So if A, B, and C give a consideration jointly to D, whereupon D makes a promise to A, or B, or C, or any two of them, an action can be maintained on the promise by the party to whom it is given.

OF THE CONSIDERATION ARISING FROM DISCHARGING THE DEBT OF ANOTHER.

If A is compelled to do for B that which B should have done, and was under an obligation to do himself, A can now demand from B full indernnity or compensation; and, to enable him to enforce this claim, the law will imply or presume a request from B that A should do this thing, and also a promise from B to A of repayment or indemnity, which promise rests upon the sufficient consideration of A's doing, or undertaking to do, that thing; and the law will not permit the party to deny the request or promise which it thus presumes. This rule applies to all cases in which a surety or guarantor pays or does for his principal that which the principal undertook to do, and the surety undertook that he would do for the principal if the principal did not do it. The law considers that this request of the principal to the surety, and also this promise of indemnity, belong necessarily to such a relation.

But the rule is quite otherwise where A without compulsion does for B what B was under an obligation to do for himself; as if A voluntarily pays to C a debt due from B to C. Here the law will not presume or imply both the request and the promise. If, therefore, neither be proved, A cannot enforce repayment from B; and the reason is that A cannot, as was before remarked, make himself the creditor of B without B's assent. And this reason is more than merely technical, for B may have good ground for preferring to be the debtor of C, rather than of A. But if A can prove either the request or the promise, the law will conclusively presume the other. Thus, if A can prove that B requested him to pay his debt to C, the law will presume B's promise of repayment; or if A can prove that B promised to A a repayment, the law will consider this as an acknowledg ment and acceptance of the payment as a service rendered to him, and will thereupon presume a previous request to A. And in either case A can recover from B on this promise.

THE STOCK OF GOLD IN THE UNITED STATES.

WE insert the following remarks from the California Mercantile Gazette and Price Current, upon the article in the March number of this maga zine, respecting "the Stock of Gold in the United States," being only desirous of getting "at the facts of the case if they are attainable," and wishing, if we have, as stated below, "bulled" the gold market by the facts in our former article, to help the Gazette to "bear" it now:

In the March number of Hunt's Merchants Magazine we find the following statement, which purports to be an approximation of the amount of precious metals in the United States in the year 1862 :

We confess to some surprise at finding such a statement as this in the Merchants' Magazine, whose statistics have hitherto been accepted as authentic and reliable. The writer, in his attempt to correct the wild and erroneous figures of HALLET & Co., has evidently gone over to the other extreme. We much regret this, as tending to impair confidence in other statements contained in that valuable periodical.

Of the first epoch embraced in the foregoing table (1821 to 1849) we shall say nothing, except that it corresponds substantially with official records for the year 1848. Of the second epoch (1849 to 1862) we shall endeavor to show that gome of the figures are very wide of the mark. The product of the mines of the United States during this period is placed, in the above statement, at $523,070,040. That this is a most palpable error is shown by the fact that the sum of $528.145,655, was received at the United States Mint and Branches from California alone, according to the official report of the Director, under date of June 30th, 1862. Now it is well known that a very large portion of the California gold exported from the United States never enters the mint nor any of its branches. Here then, we perceive at once an enormous omission. The writer in the magazine not only estimates the whole yield of the mines of the United States at less than the amount actually received at the mint from California alone, but overlooks entirely the vast sums exported without government stamp or die. The clearances from this port direct to foreign countries have been near $60,000,000, of which at least seven-eighths were in grains and the bullion of private assayers--never inscribed on the mint records at all. The exports from Eastern cities partake largely of the same character. Gold received from this coast, a large portion of it goes into banks or private vaults until wanted for export, and is then sent off in the same shape to foreign countries. The statement of imports and exports in the magazine agrees substantially

with tables in the finance report for the fiscal year ending June 30, 1861, and does not come down to 1862, though professing to do so. The figures for the fiscal year ending June 30, 1862, are not fully at our disposal; but the following estimates cannot be far out of the way: Exports, $40,000,000; imports, $12,000,000. This will give the totals from 1849 to 1862, inclusive, in round numbers: Exports, $578,000,000; imports, $147,300,000. Of these imports a very large portion was deposited in the mint. Official reports for the years 1861 and 1862 alone, show the deposits of foreign coin and bullion in that institution to have been over $47,000.000. But without stopping to hunt up the figures for preceding years, we will suppose that of the $147,300.000 imported, $100,000,000 was sent away again, and included in the aggregate of specie clearances. This will leave a balance of treasure exports during the epoch under consideration (1849 to 1862) amounting to $478,000,000-entirely, it may be supposed, of home production.

Now the question arises, what portion of this amount passed through the mint or its branches, including, of course, the New York Assay-office, whose operations are embraced in mint reports. We have conversed with some of our most intelligent bankers, who have given the subject attention while on visits at the East, and they assure us that the great bulk goes forward to Europe in the very shape received, and that an allowance of one-third would probably cover the entire amount refined or coined by the mint. If this proportion is not correct, our cotemporary of the magazine, who has access to records beyond our reach. can, perhaps, give us the true figures, and we will thank him to do so. Our object is simply to arrive at the facts. How much of this treasure exported was in domestic bullion not entered at the mint or assay-office? This is the question, and when answered, the amount, whatever it may be, added to the receipts at mint, will give a near approximation to our home production of the precious metals.

With these data before us we proceed to construct a statement which will not be found to differ materially in its results from the one presented in our review of 20th ultimo, though in different shape, and brought down a year later.

Assuming the amount of coin and bullion on hand, June 30, 1848,
to have been, in round numbers.

Amount deposited in mint and branches from that period to June
30, 1862, from all domestic sources, as per mint report......
Amount received from domestic sources for export during same
period, and not passed through mint, estimated..
Foreign imports

Total...

Exports during the same period...

$122,600,000

541,500,000

250,000,000

147,300,000

$1,061,400,000

Amount on hand, January 30, 1862...

578,000,000

$483,400,000

Total domestic product of precious metals from June 30, 1848, to June 30, 1862, $791,500,000, or an average of about $57,000,000 per annum.

We cannot, of course, pretend to strict accuracy in these figures, but commend them to our brother of the magazine, as possibly a few hundred millions nearer the truth than his own. Erroneous statements emanating from so high a source are adapted to mislead and tend to elevate the market value of gold above its proper measure, and to depress in a corresponding degree the value of government paper. It is well known that we have no affection for paper money, whether issued by government or by local banks, and gold is the great product and interest of the Pacific coast; but we desire nothing but fair play-no bulling or bearing, of which the article in the magazine savors, and which is surely out of place in the compilation of statistics for the public guidance. We would be glad to get at the facts in this case if they are attainable.