NORRIS, J.
It is claimed by plaintiff in error that from the facts stated in the pleadings there was an implied condition that the coal in the land of the plaintiff below was to be mined through and by means of the shaft and tipple then in operation on the adjoining land theretofore constructed by defendant below, and that b'e-■cause of the destruction by fire of the tipple and appliances without the fault of the coal company, it was no longer under ■obligations to carry out the agreement and mine the coal; that the parties when they made the contract had this situation in view, and that by reason thereof this implied condition arises, and that the performance of the contract on the part of the •coal company, while not impossible, this implied condition relieves it from liability.
The substance of this answer is that it would be unprofitable for the coal company to reconstruct the tipple and appliances ■destroyed by fire to remove the small amount of coal still remaining in the land of the plaintiff below.
[631]*631There are numerous authorities holding that where the subject matter of the contract is destroyed without fault of the parties so that the contract is impossible of performance, there is an implied condition that the parties are relieved from carrying out the contract. The earliest case that we have found where the question is discussed is perhaps Paradine v. Jane, 1 Aleyn Rep. 26, and also reported in 82 English Rep. Re. 897, a very early English case, but the rule stated is reaffirmed in the case of Atkinson v. Ritchie, 10 East. 533, 133 English Rep. Re. 877, and the rule as stated by Lord Ellenborough is as follows:
“When a party by his own contract creates a duty or •charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. ’ ’
That rule is following in numerous English eases, among others, Sheffield Water Works Co. v. Carter, 82 B. & D. 645, and .in this country there are many cases discussing the rule. In Krause v. Crothersville School (Tr.) 162 Ind. 278 [70 N. E. Rep. 264; 65 L. R. A. 111; 102 Am. St. Rep. 203], the supreme court of Indiana review the authorities at length. That was a case where a contractor agreed to construct an annex to a building and before the completion of his contract the building itself was destroyed by fire caused by lightning, and the supreme court of Indiana held that he was not liable for failure to perform his ■contract, and they announce this principle in the opinion of the court:
“ As to a general covenant, it is the law that the destruction of the subject-matter of the contract, thereby creating a physical or natural impossibility inherent in the nature of the thing to be performed, whether occasioned by vis major or otherwise, will discharge the covenant, provided the event occurred without .fault of the covenantor.”
And they cite numerous authorities in support of that principle and among others, the ease of Butterfield v. Byron, 153 Mass. 517 [27 N. E. Rep. 667; 12 L. R. A. 571; 25 Am. St. Rep. 654], and the supreme court cites with approval the principle we have quoted above from Paradine v. Jane, supra. Another leading case is Middlesex Water Co. v. Whiting Co. 64 N. J. Law [632]*632240 [45 Atl. Rep. 692; 49 L. R. A. 572; 81 Am. St. Rep. 467], and quoting from the syllabus:
“Where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, and if, by some unforeseen accident the performance is prevented, he must pay damages for not doing it, no distinction being made between accidents that could be foreseen when the contract was entered into, and those that could not have been foreseen.
‘ ‘ The performance of an express contract is excused where the continued existence of something essential to the performance is an implied condition in the contract.” .
The learned court in its opinion again refers to the case of' Paradine v. Jane, supra, as the “leading case on the subject,”' and cite the opinion of the supreme court of New Jersey in the case of Trenton v. Bennett, 27 N. J. Law (3 Dutch.) 513 [72; Am. Dec. 373], as follows:
“No rule of law is more firmly established by a long train, of decisions than this: that where a party by his own contract, creates a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; therefore if a lessee covenant .to repair a house, though it be burned by lightning, or thrown down by enemies, yet he is, bound to repair it. * * * No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundation in good sense and inflexible honesty. He that agrees to do an act should do it unless absolutely impossible. He should provide against contingencies in his contract. Where one of two innocent persons, must sustain a loss, the law easts it upon him who has agreed, to sustain it, or, rather, the law leaves it where the agreement of the parties has put it. The law will not insert, for the benefit, of one of the parties, by construction, an exception, which the-parties have not, either by design or neglect, inserted in their engagement. ’ ’
The learned 'judge refers to the opinion in Paradme v. Jane, supra, and says that the rule in this ease has been adhered to with great tenacity. See also Bacon v. Cobb, 45 Ill. 47. The [633]*633case of Ingle v. Jones, 69 U. S. (2 Wall.) 1 [17 L. Ed. 762], is also cited. In the opinion in that case Mr. Justice Swayne says:
“It is.a well settled rule of law, that if a party by his conxraet charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him. ’ ’
To the general rule, it is stated, there are three exceptions as follows:
1. Where the subsequent impossibility is imposed by law.
2. Where the continued existence of something essential to the performance is an implied condition of the contract.
3. In contracts for personal services, in which there is generally the implied condition that the person who is to render the service is alive and not incapacitated by illness.
The only exception that could possibly apply here is probably the second as to where the continued existence of something essential is an implied condition to the contract. It is stated that that is illustrated in the ease of Taylor v. Caldwell, 3 Best & Sm. 826; 6 Eng. R. C. 603. The defendant in that case agreed to let certain gardens and a music hall to the plaintiffs for four specified days to come for the purpose of giving a series of concerts. After the agreement was entered into and before the day arrived for the first concert, the music hall was accidentally destroyed by fire.
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NORRIS, J.
It is claimed by plaintiff in error that from the facts stated in the pleadings there was an implied condition that the coal in the land of the plaintiff below was to be mined through and by means of the shaft and tipple then in operation on the adjoining land theretofore constructed by defendant below, and that b'e-■cause of the destruction by fire of the tipple and appliances without the fault of the coal company, it was no longer under ■obligations to carry out the agreement and mine the coal; that the parties when they made the contract had this situation in view, and that by reason thereof this implied condition arises, and that the performance of the contract on the part of the •coal company, while not impossible, this implied condition relieves it from liability.
The substance of this answer is that it would be unprofitable for the coal company to reconstruct the tipple and appliances ■destroyed by fire to remove the small amount of coal still remaining in the land of the plaintiff below.
[631]*631There are numerous authorities holding that where the subject matter of the contract is destroyed without fault of the parties so that the contract is impossible of performance, there is an implied condition that the parties are relieved from carrying out the contract. The earliest case that we have found where the question is discussed is perhaps Paradine v. Jane, 1 Aleyn Rep. 26, and also reported in 82 English Rep. Re. 897, a very early English case, but the rule stated is reaffirmed in the case of Atkinson v. Ritchie, 10 East. 533, 133 English Rep. Re. 877, and the rule as stated by Lord Ellenborough is as follows:
“When a party by his own contract creates a duty or •charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. ’ ’
That rule is following in numerous English eases, among others, Sheffield Water Works Co. v. Carter, 82 B. & D. 645, and .in this country there are many cases discussing the rule. In Krause v. Crothersville School (Tr.) 162 Ind. 278 [70 N. E. Rep. 264; 65 L. R. A. 111; 102 Am. St. Rep. 203], the supreme court of Indiana review the authorities at length. That was a case where a contractor agreed to construct an annex to a building and before the completion of his contract the building itself was destroyed by fire caused by lightning, and the supreme court of Indiana held that he was not liable for failure to perform his ■contract, and they announce this principle in the opinion of the court:
“ As to a general covenant, it is the law that the destruction of the subject-matter of the contract, thereby creating a physical or natural impossibility inherent in the nature of the thing to be performed, whether occasioned by vis major or otherwise, will discharge the covenant, provided the event occurred without .fault of the covenantor.”
And they cite numerous authorities in support of that principle and among others, the ease of Butterfield v. Byron, 153 Mass. 517 [27 N. E. Rep. 667; 12 L. R. A. 571; 25 Am. St. Rep. 654], and the supreme court cites with approval the principle we have quoted above from Paradine v. Jane, supra. Another leading case is Middlesex Water Co. v. Whiting Co. 64 N. J. Law [632]*632240 [45 Atl. Rep. 692; 49 L. R. A. 572; 81 Am. St. Rep. 467], and quoting from the syllabus:
“Where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, and if, by some unforeseen accident the performance is prevented, he must pay damages for not doing it, no distinction being made between accidents that could be foreseen when the contract was entered into, and those that could not have been foreseen.
‘ ‘ The performance of an express contract is excused where the continued existence of something essential to the performance is an implied condition in the contract.” .
The learned court in its opinion again refers to the case of' Paradine v. Jane, supra, as the “leading case on the subject,”' and cite the opinion of the supreme court of New Jersey in the case of Trenton v. Bennett, 27 N. J. Law (3 Dutch.) 513 [72; Am. Dec. 373], as follows:
“No rule of law is more firmly established by a long train, of decisions than this: that where a party by his own contract, creates a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; therefore if a lessee covenant .to repair a house, though it be burned by lightning, or thrown down by enemies, yet he is, bound to repair it. * * * No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundation in good sense and inflexible honesty. He that agrees to do an act should do it unless absolutely impossible. He should provide against contingencies in his contract. Where one of two innocent persons, must sustain a loss, the law easts it upon him who has agreed, to sustain it, or, rather, the law leaves it where the agreement of the parties has put it. The law will not insert, for the benefit, of one of the parties, by construction, an exception, which the-parties have not, either by design or neglect, inserted in their engagement. ’ ’
The learned 'judge refers to the opinion in Paradme v. Jane, supra, and says that the rule in this ease has been adhered to with great tenacity. See also Bacon v. Cobb, 45 Ill. 47. The [633]*633case of Ingle v. Jones, 69 U. S. (2 Wall.) 1 [17 L. Ed. 762], is also cited. In the opinion in that case Mr. Justice Swayne says:
“It is.a well settled rule of law, that if a party by his conxraet charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him. ’ ’
To the general rule, it is stated, there are three exceptions as follows:
1. Where the subsequent impossibility is imposed by law.
2. Where the continued existence of something essential to the performance is an implied condition of the contract.
3. In contracts for personal services, in which there is generally the implied condition that the person who is to render the service is alive and not incapacitated by illness.
The only exception that could possibly apply here is probably the second as to where the continued existence of something essential is an implied condition to the contract. It is stated that that is illustrated in the ease of Taylor v. Caldwell, 3 Best & Sm. 826; 6 Eng. R. C. 603. The defendant in that case agreed to let certain gardens and a music hall to the plaintiffs for four specified days to come for the purpose of giving a series of concerts. After the agreement was entered into and before the day arrived for the first concert, the music hall was accidentally destroyed by fire. It was held that as the existence of the hall was necessary for the performance of the contract, the defendants were excused from liability in respect to its performance, and that no action would lie against them.
We think there is a clear distinction between that class of eases and the one at bar. The coal mine itself was not destroyed. The only destruction was of the tipple and appliances, by which the coal had heretofore been mined, which rendered the further mining of the coal much more expensive. Dexter v. Norton, 47 N. Y. 62 [7 Am. Rep. 415], cited by counsel for plaintiff in error in this case is referred to in the learned opinion as to the third class of exceptions above referred to, but it was held in a subsequent ease in the same court in an opinion delivered by the same judge that under contract within a specified [634]*634time, the destruction by fire of the plaintiff’s rolling mill, which prevented the defendant from completing its contract by the time fixed in the agreement, did not excuse even though the accident prevented the performance. Booth v. Mill Co. 60 N. Y. 487.
We find no case that we think conflicts with the principle announced by the authorities cited, but we think whatever may he the law elsewhere, it has been settled by our own Supreme Court against the contention of the plaintiff in error. In the case of Bath Twp.. (Board of Ed.) v. Townsend, 63 Ohio St. 514 [59 N. E. Rep. 223; 52 L. R. A. 868], it is stated in the syllabus:
“Inevitable accident will not excuse the performance of a contract where its essential purposes are still capable of substantial accomplishment, though literal performance has become physically impossible.
“When a party has one or the other of two modes of performing a contract, and one of them becomes impossible by the act of God, he is bound to perform it in the other mode. ’ ’
It does not appear in this case in the pleadings that literal performance of the contract was impossible. The only claim on the part of the plaintiff in error is that it would be very expensive, and that the coal remaining in these lands could not be mined with profit in view of the expense of reconstructing the tipple. We know of no authority, and none has been cited to us, that relieves a party from the obligations of a contract because of an inevitable accident which makes the performance of a contract unprofitable. If such a rule were to be adopted where would it end? The coal company in this case had a'tipple on adjoining lands in such proximity to the coal of the plaintiff below that it could profitably mine the coal and pay a greater royalty than it otherwise could have profitably paid. Now, its appliances have been destroyed without its fault and the continued mining of Thompsons’ coal has been rendered unprofitable. May it thereby be relieved from the obligations of its contract? Is there an implied condition in all contracts that the things existing at the time the contract is made, and that the means by which the contract is to be performed shall continue until the performance of the contract? A homely [635]*635illustration might be suggested that a party had agreed to haul this coal to market; that he had for that purpose a team of horses and a wagon and before the complete performance of the contract without his fault these means are destroyed, and to get another team and wagon for the purpose of hauling the balance of the coal to market would make it unprofitable,. Is he still liable on the contract? We think all the authorities say that the liability still exists. New York Coal Co. v. Coal Co. 86 Ohio St. 140 [99 N. E. Rep. 198], is a much stronger case for relief from liability than the one made by the plaintiff in error, but the Supreme Court in an exhaustive opinion holds that the lessee is not relieved from liability under the contract of lease.
We have examined all the authorities cited by plaintiff in error and have found none, that we think conflict with the rules we have here announced. It follows that the judgment of the court of common pleas will be affirmed.
Metcalfe and Pollock, JJ., concur.