or of the party for whom they are to be performed, is ground for a discharge. Where a clerk is employed for three years to conduct a branch store, the death of the employer puts an end to the contract, and there can be no recovery for the balance of the salary. Where the illness of a servant is of more than a temporary nature, the employer may rescind the contract, but if he does not do so and takes the servant back into his employment after recovery, he can make no deduction for lost time.5

If full performance of a contract for personal services becomes impossible by illness or similar disability, the contractor may recover on a quantum meruit for what he did perform; and when, from the prevalence of an epidemic in the vicinity of a place where one has contracted to labor for a specified time, the danger is such as to render it unsafe for men of ordinary prudence to remain there, that is a sufficient excuse for non-performance.

Illness as an excuse for non-performance applies only in contracts which require the personal services of the promisor and which can not be performed by deputy. Therefore, the insanity or illness of the insured is no excuse for a failure to pay the premiums on a policy of life insurance.

3 Lacy . Getman, 119 N. Y. 109; Leopold . Salkey, 89 Ill. 412; Stewart v. Loring, 5 Allen, 306; Billing's Appeal, 106 Pa. St. 558; Janin . Browne, 59 Cal. 44; Siler v. Gray, 86 N. C. 566; Jennings v. Lyons, 39 Wis. 553. In Dewey v. Alpena School District, 43 Mich. 480, it was held that a public school teacher may recover his salary for the stipulated time, although the school was suspended on account of the prevalence of smallpox. See Libby v. Douglass, 175 Mass. 120, to the same effect. Some cases hold that the death of a member of a firm terminates a contract for personal services to be rendered to it. Tasker . Shepperd, 6 H. & N. 575. But other cases hold the contrary, especially when the firm's business continues. Phillips . Alhambra Palace Co. [1901], 1 Q. B. 59; Nickerson v. Russell, 172 Mass. 584.

4 Yerrington . Greene, 7 R. I. 589.

5 Bast v. Byrne, 51 Wis. 531; Cuckson r. Stone, 1 E. & E. 248.

6 Lakeman r. Pollard, 43 Me. 463.

7 Cases in note 1, supra.

8 Wheeler . Conn. Mutual Co., 82 N. Y. 543; Klein . N. Y. Life, 104 U. S. 252; Carpenter r. Centennial Co., 68 Iowa, 453. Some of

It has been held that the ill health of a man does not liberate him from a promise to marry, although the illness is of such a nature as to make it hazardous for him to marry, and that no disease is an excuse for breach of this particular contract unless it be such as to render consummation of the marriage impossible. But the better doctrine is that of other cases which hold that a disease which unfits a party for marriage is an impossibility which excuses a breach.10

$195. Legal Impossibility. The clause in the Federal Constitution providing that no State shall pass any law impairing the obligation of contracts does not prevent a State from making that unlawful which had already been made the object of a contract.1 If after the making of a contract to do something at a future time, which is then lawful, a statute is passed which prohibits the doing of that thing the contract is terminated and the parties discharged.2 And so, if by an injunction, or other sovereign power, the performance of a contract becomes illegal, the contract is not broken, but discharged.3

Where premises are leased to be used for the sale of intoxicating liquor, the subsequent enactment of a statute prohibiting the sale of liquor in that locality discharges the contract.*

the cases as to the effect of incapacitating illness or insanity on failure to pay insurance premiums when due are collected in a note to Hipp . Fidelity, etc., Co., 12 L. R. A. (N. S.) 319.

9 Smith v. Compton, 67 N. J. L. 550; Hall . Wright, 29 L. J. Q. B. 43; El. B. & E. 746.

10 Gring v. Lerch, 112 Pa. 244; Edmonds v. Hughes, 115 Ky. 561; Sanders v. Coleman, 97 Va. 690; Allen v. Baker, 86 N. C. 91; Shakleford. Hamilton, 93 Ky. 80; 15 L. R. A. 531. In the last two cases the incapacitating disease was venereal, and in such cases the defendant should be held liable in damages for having himself created the moral impossibility, or the disease may be regarded as a repudiation of the contract by conduct.

1 Cooley, Constitutional Limitations, 284.

2 Cordes v. Miller, 39 Mich. 581; Am. Mercantile Ex. v. Blunt, 102 Me. 128; Baily r. De Crespigny, L. R. 4 Q. B. 180.

3 People r. Globe, etc., Ins. Co., 91 N. Y. 174.

4 Sherman v. Wilder, 106 Mass. 537; Heart v. East Tenn. Brewing Co., 121 Tenn. €9; 19 L. R. A. (N. S.) 9€5.

But if the premises are not leased for that specific purpose and the lessee has the right to use them for other purposes, then such subsequent statute does not terminate the agree ment.5

A carrier is not liable for delay or injury to goods it has agreed to transport caused by the enforcement of a valid quarantine regulation.

If the change in the law occurs after a part performance, there may be a recovery for the value of the part performed." § 196. Impossibility Created by the Promisee. An impossibility created by one party before performance is due or

5 Miller v. Maguire, 18 R. I. 770; Lawrence v. White, 131 Ga. 840. After the conveyance of land to be used as a cemetery, the enactment of a statute prohibiting its further use as such operates to annul the condition, and the title becomes vested absolutely in the grantee. Scovil v. McMahon, 62 Conn. 378; 21 L. R. A. 58.

6 St. Louis, etc., R. Co. v. Smith, 181 U. S. 428. It is otherwise if the carrier knew that its contract could not be performed on account of a quarantine. The Normannia, 62 Fed. Rep. 469.

7 Jones v. Judd, 4 N. Y. 411. In Wentink v. Passaic, 66 N. J. L. 67, there was a contract made by a municipal corporation within its authority which was set aside for irregularity after plaintiff had done work under it. He sued for expenses and profits. The Court said: "The question in this case is as to what must befall one whose contract, through no fault of his own, is by force of law annulled, while yet unperformed. Clearly he can not sue on the contract, for it has no longer legal existence. This disposes of any claim of the present plaintiff for profits. But until set aside the contract was as between the parties to it entirely valid, and its annulment subjected those parties to all just equities. Where there is a prevention of performance of a valid contract, through the fault of a defendant, the measure of the plaintiff's damages is generally for the work done, such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and in respect to work not done, such profit as he would have realized by doing it. In the case in hand the performance of the contract was not prevented by any fault of the defendant, but by vis major. The making of the contract was, however, induced by such fault; and on its annulment the defendant should answer as on a quantum meruit. for the work done thereunder. This obviates the difficulty existing in that class of cases where a blameless party is entitled to recover for what has been done under a contract not legally enforceable that the other party refuses to perform. In such cases recovery depends upon benefit and perhaps is limited to benefit."

in the course of performance discharges the contract and gives the other party a right of action.1 So where A. agreed to cut hay for B. and the latter fearing that A. would not be able to perform the service, employed other persons to do the work, this creates an impossibility and B. can not charge A. with the consequences of his failure to perform.2

If the performance of a condition for the valuation of an article by third persons be rendered impossible by the act of the vendee, the price of the thing sold must be fixed by the jury on a quantum valebat.3 A party who has performed part of a contract according to its terms, and is prevented from completing it by the fault of the other party, is entitled to compensation for the work performed, and damages for the breach of the contract. If an act is to be performed at a certain time and place, and a strict performance of it is prevented by the absence of the party who has a right to claim it, the law will not permit him to set up the non-performance of the act as a bar to the responsibility which his part of the contract had imposed on him.5

1 See the next chapter as to renunciation of a contract before or during performance, and ante, pp. 318, 319, as to preventing performance of conditions.

2 U. S. v. Peck, 102 U. S. 64.

3 Humaston v. Tel. Co., 20 Wallace, 28.

4 Chicago v. Tilley, 103 U. S. 143; Black v. Woodrow, 39 Md. 216.

5 Williams v. Bank, 2 Peters, 102; Brown v. Rasin Monumental Co., 98 Md. 1.

$197.

CHAPTER V

DISCHARGE OF CONTRACT BY BREACH

Effect of Breach in General -Failure of Performance.

A party may break his contract by failing to perform it in whole or on part, or by a renunciation of it, that is, by declaring his purpose not to carry it out, or by disabling himself from performing it, or by making it impossible for the other party to perform his part.

Any failure of the promisor to perform fully is a breach, and every breach entitles the promisee to demand that he be compensated for the injury that may be thus caused. But every breach does not authorize the other party to rescind the contract, or to treat it as abandoned, or to refuse wholly to perform his counter promise. If the breach is of a trifling character, or is merely the failure to perform a subsidiary promise, or a part of a divisible contract, then the only right of the other party is an action for damages, or to enforce a counterclaim or recoupment. He is not on that account released from liability.

But when one party's failure to perform, relates to a substantial part of the contract, then the other party has the right either to demand compliance with the contract, or to refuse to perform his own promise, or to rescind the contract and treat it as at an end except for the purpose of bringing an action. No general rule can of course be laid down as to what constitutes a substantial breach, or as to its effect upon the rights of the other party, since it depends upon the nature of the contract in each case. The question as to what constitutes a substantial breach in a contract by failure to perform in the case of conditional and divisible contracts has been considered in a previous part of this work.1 In regard to entire contracts, that question has also been considered in

1Ante, Part v, chapters 1 and 4.