I concur in the conclusion reached in division 1, to the effect that count one of the petition did not state a cause of action; and while my views may not be actually different from those of my associates, there are certain reservations that I would like to make in express terms with respect to my position.
The Code, § 20-1102, declares: "If such a performance is impossible, and becomes so by act of God, such impossibility is itself a defense equivalent to performance; but if, by proper prudence, such impossibility might have been avoided by the promisor, it ceases to be an excuse for nonperformance." This principle seems to be defensive only, that is, one excusing nonperformance, and might or might not operate affirmatively so as to extend the time for exercising a right. The plaintiff here is seeking the latter application.
The opinion as delivered holds, and correctly so, as I think, that war is neither an act of God, nor a casualty or misfortune that could not be anticipated. This being true, the case necessarily falls, and it is therefore unnecessary to determine whether, if a lessee under such a lease should be actually prevented by an act of God, or by some unforeseen casualty or misfortune, from removing the timber within the period stipulated, the time for removal would be extended by operation of law.
Accordingly, I expressly reserve opinion on the questions indicated.
I concur without qualification in the rulings contained in divisions 2 and 3, relating to count 2.
I dissent from the ruling in division 4, relating to the same *Page 829 count. I think that the allegations were relevant on the question whether the plaintiff had used the proper diligence to remove the timber within the original term, and that they should not have been stricken.