Henry (D) contracted through Krell's (P) agent, Bisgood, to use P's flat in Pall Mall, London, to view the coronation procession of King Edward VII from the window of the flat. D interviewed the housekeeper on the subject, when it was pointed out to him what a good view of the processions could be obtained from the premises, and he eventually agreed with the housekeeper to take the suite for the two days in question for a sum of 75l. The rental contract made no mention of this purpose. The king became very ill and the coronation was delayed. P sued for the balance due under the contract and D counterclaimed for his deposit. Judgment was given to D under Taylor v. Caldwell; there was an implied condition in the contract that the procession should take place. P appealed.
(Bower and Gregory for P): In the contract nothing is said about the coronation process but it is admitted that both parties expected that there would be a procession and that the price paid reflected that assumption. It was held that Taylor applied. That is wrong and if so the result would be that in every case an unremunerated promisor will be in effect the insurer of the hopes and expectations of the promisee. In order to be excused the default must be of no part of his own, either the physical extinction or the not coming into existence of the subject matter of the contract must happen and the performance of the contract must be rendered impossible. There has been no default on the part of D. There has been no physical extinction of the subject matter and performance is quite possible.