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Page 252
157 A.2d 252 
2 Storey 295, 52 Del. 295
Benjamin B. WILLS, to and for the
use of Boat Sales, Inc., a
corporation of the District of Columbia, and
Boat
Sales, Inc., a corporation of the
District of Columbia, Plaintiffs,
v.
George E. SHOCKLEY, Defendant.
Superior Court of Delaware, Sussex
County.
Jan. 8, 1960.
Houston Wilson, Georgetown, and
John B. Cullen, Washington, D. C., for
plaintiffs.
Frederick P. Whitney, Georgetown,
for defendant.
STOREY, Judge.
This action for breach of
contract was heard by this Court, sitting
without a jury, upon complaint and answer
filed by the plaintiffs and the defendant,
respectively.
At the end of plaintiffs' case,
defendant moved for a dismissal of the
action, on the ground that plaintiff had not
proven his case. Decision was reserved.
Defendant's motion for dismissal is denied.
By the terms of a salvage
agreement, apparently entered into under
date of February 7, 1953, the defendant,
George E. Shockley, agreed with the
plaintiff, Benjamin B.
Page 253
Wills, owner of the boat Benjamin Bros. II,
to raise and float the boat, and to keep her
afloat until she was docked in Baltimore,
Maryland, whereupon the owner was to receive
the cable and one-half of the fair worth of
the boat. The contract between the parties
was absolute, without any exculpatory clause
in case of unfavorable weather, unforeseen
circumstances or otherwise. After the making
of the contract, the boat slipped off the
rocks at Reedy Island, where she had been
aground, and sank in deep water, where she
filled with mud, making it impossible for
the defendant to raise her.
The question before this Court is
whether the intervening impossibility of
performance absolves the defendant from
liability for non-performance of a contract
which he had entered [52 Del. 297] into, and
as to which he was under an absolute duty to
raise the boat in question.
In this regard, the following
quotation from 17 C.J.S. Contracts § 463d,
pages 955-956, seems pertinent:
'In the absence of a statute to the
contrary, the general rule is that an
absolute undertaking is not discharged by a
subsequent act of God rendering the
performance onerus or even impossible.
Although the promisor cannot be compelled to
perform an undertaking impossible of
performance through an act of God, he
cannot, on the ground of hardship or
impossibility, escape liability in damages,
in the absence of a reservation covering
such impossibility of performance.'
For decided cases which support
this proposition, the following are cited:
Megan v. Updike Grain Corp., 8 Cir., 94 F.2d
551;
Standard Oil Company of New York v. Central
Dredging Company, 252 N.Y. 545, 170 N.E. 137;
225 App.Div. 407, 233 N.Y.S. 279;
Gross v. Exeter Machine Works, 277 Pa. 363,
121 A. 195; and Tennessee Electric Power
Co. v. White County, 6 Cir., 52 F.2d 1065.
Plaintiffs' position seems
strengthened in this instance, for
defendant, who had many years of experience
in the field of salvage, entered into an
absolute commitment in writing to raise and
float the boat and keep her afloat until she
could be docked in Baltimore, Maryland.
At the time of entering the
contract, defendant did not see fit to
relieve himself from liability for his
failure to perform by reason of any
subsequent difficulty or difficulties which
might arise from any source whatsoever. Not
having done so, he is now obligated to
perform the contract according to its terms,
or upon his failure so to do, he is liable
to the plaintiff for the damages resulting
therefrom. See 17 C.J.S. Contracts § 463d,
pages 955-956, and 12 Am.Jur., Contracts,
Section 363 at pages 930-932, and cases
therein cited.
[52 Del. 298] I quote a few
pertinent sentences from said Section 363:
'In an ancient English decision it was
declared that where the law creates a duty
or imposes a charge and the party is
disabled to perform it without his fault and
has no remedy over, the law will excuse him,
but where a party by his own contract
creates a duty or imposes a discharge 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. This
language has been frequently repeated. That
early English decision has often been
referred to as a leading one and as
establishing the rule that where there is a
positive contract to do a thing, not in
itself unlawful, the contractor must perform
it or pay damages for not doing it,
although, in consequence of unforeseen
accidents, the performance of his contract
has become unexpectedly burdensome or even
impossible.' (Emphasis added.)
It is established that it is
impossible for the defendant to perform his
duty under
Page 254
the contract but the defendant is liable
under the terms thereof, and, therefore, I
find for the plaintiffs.
The only testimony adduced as to
the value of the boat was from $20,000 to
$25,000, at Baltimore, and the cost of
reconditioning her at Baltimore was fixed at
approximately $2,000. However, the total
damages claimed in the complaint is $5,000.
The sum of $450 was claimed for loss of
cable, but this item is disallowed by reason
of the fact that there is no competent
evidence as to the value of the cable at the
time it was lost.
I, therefore, arrive at the
amount of the judgment in this case by
deducting the sum of $450 from the sum of
$5,000 claimed, leaving a balance claimed of
$4,550, for which amount judgment is hereby
granted for plaintiffs, and against the
defendant, together with cost of suit.
Order, in conformity herewith,
will be signed on presentation.
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