(after stating the facts). A majority of the court are of the opinion that the proper construction of the contract between appellant and appellee is that appellee was bound, by its terms, to gather and deliver to appellant one-fourth of the cotton raised on the twenty acres; and that only the act of God, or the public enemy, or the act of the appellant, could excuse him from a compliance with this contract; that inconvenience or the cost of compliance, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaking to do a thing that is possible and lawful. Parties sui juris bind themselves by their lawful contracts, and courts cannot alter them, because they work hardships. The parties must take care of themselves, and must be held to the performance of their undertakings, when it is possible to perform them, and they are not unlawful. “But, to make the act of God a defense, it must amount to an impossibility of performance by the promisors. Mere hardship or difficulty will not suffice.” 2 Parsons on Cont. (8 ed.) p. 672. It was not pretended that the cotton raised on the twenty acres could not be gathered; only, that it could not be gathered without much inconvenience and great and unusual expense. This would not excuse the appellee from performance of his contract to gather, which is included in his agreement to pay appellant one-fourth the cotton grown or its cash value. If he made this contract, and it proved a hard one, by the performance of which he would evidently be at great inconvenience and suffer much loss, nevertheless, if possible of performance, he was bound to perform it unless excused as indicated.
The circuit court erred in refusing the instructions asked by plaintiff, and giving the one (number five) above, for which the judgment is reversed and remanded for a new trial.