Charles Sargent, C.J.
1. This reference from the Small Cause Court arises out of a claim for Rs. 981 alleged to be due to plaintiff upon an agreement entered into with him by the defendant on the 3rd September, 1888. By this agreement the defendant agreed to pay the plaintiff rent for a piece of hilly ground at the rate of Rs. 529 per month for one year, during which time the defendant was to be allowed to blast stones and carry on the work to the extent of seven crow-bars. At the time of the agreement the defendant had a license from the Commissioner of Police, which expired on the 31st December, 1888. On his applying for a fresh license he was informed that the Municipal Commissioner objected to the license being granted, as the quarry, operations were being carried on, was surrounded rouses on all sides. By the agreement the plaintiff had the houses on defendant was to quarry; but it is admitted that there is no other part of the hill which could be used by the defendant for the purpose, except the part to which the Municipal Commissioner objects. The Judge of the Small Cause Court held that the agreement was rendered void by the quarrying being forbidden by the legal author. But it is to be remarked that the contract includes no agreement to quarry. The plaintiff performed his part of the contract when he pointed out the land for the defendant's use. The defendants only obligation was to pay Rs. 329 per month to the plaintiff and this the defendant could have done, from a legal point of view whether the quarrying was forbidden or not, as was pointed out by Blackburn, J., in River Wear Commissioners v. Adamson L.R. 2 App. Cas. At p. 770 when discussing the effect of the decision in Paradine v. Jane Aleyn 26. The question for determination, in our opinion is whether, by reason of the quarrying having been stopped, the defendant is relieved from his liability to pay the monthly sum of Rs. 329, as provided by the agreement. We may remark, in the first instance, that this was not a contract of 'letting'. The plaintiff was to remain in possession, and pint out certain places on hill where the defendant might quarry, with power to change these from time to time. It was, as in Taylor v. Caldwell 3 B. & S. 826 : 32 L.J.Q.B. 164 a contract merely to give the defendant the use of such Places as he might point out. Now, the general rule is, as stated Blackburn, J. in Taylor v. Caldwell 3 B. & S. 826 : 32 L.J.Q.B. 164 that 'where there is a Positive contract to do a thing, not in itself unlawful, the contract must perform it or pay damages for not doing it, although in consequence of unforeseen accidents, the performance of his contract. Income unexpectedly burdensome or even impossible. Such being the general rule, there is, however, a class of cases in which notwithstanding the general rule, the defendant has been loused from performing his contract by an occurrence which neither party can reasonably be supposed to have contemplated, or, as it was said in Baily v. De Crespiyny L.R. 4 Q.B. 180 which 'was not within the contract.'
2. In Taylor v. Caldwell 3 B. & S. 826 : 32 L.J.Q.B. 164 where the defendant had contracted to give the plaintiff the use of the Music Hall on certain days and the Music Hall was accidentally burnt down before the time arrived for the plaintiff to have the use of it, the Court held the defendant to be discharged from his obligation, on the ground that there was an implied condition in the contract that the Hall should continue in existence. So in Clitford v. Watts L.R. 5 C.P. 577 the Court held the defendant excused from his obligation to extract not less than 1,000 tons of potter's clay, annually paying a royalty of 2s. 6d. per ton, on the ground that the parties contracted on the assumption that there were 1,000 tons of potter's clay on the land. Again in Baily v. DcCrespigny L.R. 4 Q.B. 188 where in a covenant in a demise that the defendant should or would not permit to be built any message on a paddock fronting the demised premises, and the paddock was taken up by the London and Brighton Railway Company who erected a railway station on it, the defendant was discharged from his covenant, because its words were not used with reference to the possibility of the particular contingency which afterwards happened. These oases show, as stated in Pollock on Contracts, p. 351 (4th edn.), that the tendency of the decisions is 'to treat the subject as one to be governed by rules of construction rather than by rules of law.'
3. Passing to the contract in question it is to be remarked that by Clause 1 the rent of Rs. 329 per month is arrived at by calculating Rs. 47 in respect of each of the seven crow-bars which the defendant was authorized to work with. This shows that the obligation to pay Rs. 329 per month was based on the assumption that the defendant would be able to work the crow-bars, although the amount of stone which the defendant would be able to extract by such work would be necessarily more or less uncertain, more especially having regard to the clause which enabled the plaintiff to point out the particular places where the defendant was to work. No doubt, both parties must be taken to have been aware that the authorities had the power of stopping the quarrying if it was dangerous to the public; but quarrying had been going in the plaintiff's hill up to that time, and it is only reasonable to suppose that the parties entered into the contract on the assumption that quarrying would continue to be permitted by the authorities.
4. It is not alleged that the veto which the authorities have put on the quarrying was owing to the defendant's careless or improper mode of blasting; the only reason assigned by the Commissioner of Police is that the blasting was dangerous to the neighbouring houses and their inmates. Nor is it alleged by the plaintiff that he can point out any other spot for blasting to which the authorities would not equally object; and, therefore, this 'crow-bar work,' upon which the rent was based, thus became impossible without either party being to blame for it. We think that, looking at the nature of this contract, it would defeat the intention of the parties were we to regard the defendant's obligation to pay the monthly Rs. 329 as in substance unconditional on quarrying being allowed, and that the contract must be taken to have been entered into on the assumption that the authorities would permit quarrying just as in Clifford v. Watts L.R. 5 C.P. 577 the contract was held to have been based on the assumption that there were 1,000 tons of clay to be extracted. The cases of Marquis of Bute v. Thompson 13 M. & W. 487 and Ridgway v. Sneyd Kay. 27 relied on for the plaintiff, were cases of mining leases, and are distinguishable from the present case. The former is discussed in Clifford v. Watts L.R. 5 C.P.588 where it is pointed out that a minimum rent was agreed to be paid, which showed that rent was to be paid in any case. In Ridgway v. Sneyd Kay. 627 the decision refusing to relieve the plaintiff from his liability was mainly based on the same consideration.
5. It was said, indeed, that Article 6 of the agreement threw the risk of obtaining leave to quarry on the defendant; but, we think, that, on the reasonable construction of the language of that clause, all that was intended was to throw on the defendant the expenses to be incurred in carrying out the police arrangement and obtaining the license, and to prevent his having any cause of complaint on that account against the plaintiff; but that is quite a different thing from making the obligation to pay the rents absolute, whether the quarrying was stopped altogether or not. It was said, indeed, that it was only the blasting which was forbidden, and that the defendant might have quarried by other means; but there is no finding in the case that any other means were practically feasible, or that blasting by means of some description of explosive is not, practically speaking, an essential part of quarrying stone on the plaintiff's hill.
6. We must, therefore, answer the first question in the negative; the second question in the negative; and the third in the affirmative.
7. Costs to be costs in the cause.