/2/ If a carrier should undertake to carry the
machinery of a saw-mill from Liverpool to Vancouver's Island, and
should fail [302] to do so, he probably would not be held liable
for the rate of hire of such machinery during the necessary
delay, although he might know that it could not be replaced
without sending to England, unless he was fairly understood to
accept "the contract with the special condition attached to it."
/1/
It is true that, when people make contracts, they usually
contemplate the performance rather than the breach. The express
language used does not generally go further than to define what
will happen if the contract is fulfilled. A statutory requirement
of a memorandum in writing would be satisfied by a written
statement of the promise as made, because to require more would
be to run counter to the ordinary habits of mankind, as well as
because the statement that the effect of a contract is the
assumption of the risk of a future event does not mean that there
is a second subsidiary promise to assume that risk, but that the
assumption follows as a consequence directly enforced by the law,
without the promisor's co-operation. So parol evidence would be
admissible, no doubt, to enlarge or diminish the extent of the
liability assumed for nonperformance, where it would be
inadmissible to affect the scope of the promise.
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