the deed. 10 The great weight of authority, however, is to the contrary.11 It may be urged that the principle of equivalence which forms the basis of conditions implied in law is violated by such decisions since the last instalment of the price is not the equivalent in value of the conveyance. But the necessary equivalence is between the total performance on the one side and on the other. The fact that the seller gets a large part of the price before he gives any equivalent for it is no reason why he should get it all without making the agreed return. § 838. Failure to perform on the part of the plaintiff owing to excusable impossibility. As the basis of the defendant's excuse where the plaintiff has failed to perform, or is obviously going to fail to perform, is based on failure of consideration, the reason why the plaintiff fails to perform is immaterial. Even though his failure is owing to excusable impossibility, the result is the same. The defendant has not got what he bargained for and need not perform.12 Thus in a contract of employment, the illness of the employee for a material time excuses the employer from 10 Weaver v. Childress, 3 Stew. (Ala.) 361; Hays v. Hall, 4 Port. 374, 387, 30 Am. Dec. 530; White v. Beard, 5 Port. 94, 100, 30 Am. Dec. 552; Miller v. Wild Cat Road Co., 52 Ind. 51; Clopton v. Bolton, 23 Miss. 78; McMath v. Johnson, 41 Miss. 439; Morris v. Sliter, 1 Denio, 59; Gale v. Best, 20 Wis. 44; Shenners v. Pritchard, 104 Wis. 287, 80 N. W. 458. See also Loud v. Pomona Land Co., 153 U. S. 564, 38 L. Ed. 822, 14 Sup. Ct. 928; Gibson v. Newman, 2 Miss. 341. 11 Bank of Columbia v. Hagner, 1 Pet. 455, 7 L. Ed. 219; Hill v. Grigsby, 35 Cal. 656; Sanford v. Cloud, 17 Fla. 532; Duncan v. Charles, 5 Ill. 561; Runkle v. Johnson, 30 Ill. 328, 332, 83 Am. Dec. 191; Headley v. Shaw, 39 Ill. 354; McCulloch v. Dawson, 1 Ind. 413; Summers v. Sleeth, 45 Ind. 598; Clark v. Continental Improvement Co., 57 Ind. 135; Berryhill v. Byington, 10 Iowa, 223; Courtright v. Deeds, 37 Iowa, 503; Zebley v. Sears, 38 Iowa, 507; Kane v. Hood, 13 Pick. 281; Wadlington v. Hill, 18 Miss. 560; Eckford v. Halbert, 30 Miss. 273; Robinson v. Harbour, 42 Miss. 795, 97 Am. Dec. 501, 2 Am. Rep. 671; Ackley v. Elwell, 5 Halsted, 304; Egbert v. Chew, 2 Green (N. J. L.), 446; Shinn v. Roberts, 1 Spencer, 435, 43 Am. Dec. 636; Johnson v. Wygant, 11 Wend. 48; Glenn v. Rossler, 156 N. Y, 161, 50 N. E. 785; Powell v. Dayton. etc., R. Co., 14 Oreg. 22, 356, 12 Pac. 83, 665. See also Giles v. Giles, 9 Q. B. 164. 12 This result would also be reached if the performance of the plaintiff is regarded strictly as a condition, infra, § 808. carrying out his agreement.13 And where illness is so long continued that the employer would not be bound to continue the relation, the employee, it seems, may end it unless the employer elects to continue the contract and pay the agreed compensation without deduction.14 So prevention by law of the employee's performance of the agreed services for a material time, though without his fault, justifies his discharge. 15 On the other hand, temporary illness of an employer which does not go to the root of the contract will not prevent him from enforcing it.16 Impossibility of completing a construction contract substantially will not justify recovery on the con 13 Taylor v. Caldwell, 3 B. & S. 826; Jackson v. Union Marine Ins. Co., L. R. 10 C. P. 125; Poussard v. Spiers, 1 Q. B. D. 410; Storey v. Fulham Steel Works, 24 T. L. R. 89; Greene v. Linton, 7 Port. 133; Remy v. Olds (Cal.), 34 Pac. 216, 21 L. R. A. 645; Hickman v. Rayl, 55 Ind. 551; Camors v. Union Marine Ins. Co., 104 La. 349, 28 So. 926, 81 Am. St. Rep. 128; Johnson v. Walker, 155 Mass. 253, 29 N. E. 522; Powell v. Newell, 59 Minn. 406, 61 N. W. 335; McGarrigle v. McCosker, 83 N. Y. App. Div. 184, 82 N. Y. S. 494, aff'd, 178 N. Y. 637, 71 N. E. 1133; Davison v. Gaskill, 32 Okla. 40, 121 Pac. 649, 38 L. R. A. (N. S.) 692; Hubbard v. Belden, 27 Vt. 645; Green v. Gilbert, 21 Wis. 395; McDougal v. Van Allen Co., 19 Ont. L. R. 351; Marks v. Dartmouth Ferry Commission, 36 N. Scotia, 158. See also Shaw v. Ward, 170 N. Y. S. 36. But see Asplund v. Mattson, 15 Wash. 328, 46 Pac. 341. In Donlan v. Boston, 223 Mass. 285, 111 N. E. 718, a school teacher died during the summer vacation. The teaching for the year had been completed, but the salary was payable according to the terms of the contract monthly during the year. It was held that the executor could not recover the payments falling due during the vacation "further payments being conditional upon the continu ance of the contract, and not upon whether she was excused from the rendition of services during the succeeding month." The decision seems wrong. There was no express condition, qualifying the city's promise, and as the teacher had substantially fulfilled her contract, there was no failure of consideration. There can be no doubt that ten months' teaching was the essential if not the sole exchange for twelve monthly payments. The decision in effect allows the city to receive services without full payment for them. In maritime law a seaman may recover wages for the whole voyage, though incapacitated for a material part of it. Chandler v. Grieves, 2 H. Bl. 606n; Walton v. Neptune, 1 Pet. Adm. 152; Ex parte Giddings, 2 Gall. 56. 14 See infra, § 1947. 15 Melville v. DeWolf, 4 E. & B. 844; Leopold v. Salkey, 89 Ill. 412, 31 Am. Rep. 93. See further, infra, §§ 1957, 1958. 16 Cuckson v. Stones, 1 E. & E. 248; Bettini v. Gye, 1 Q. B. D. 183; Warren v. Whittingham, 18 T. R. 508; Ryan v. Dayton, 25 Conn. 188, 65 Am. Dec. 560; Gaynor v. Jonas, 104 N. Y. App. D. 35, 93 N. Y. S. 287; Spindel v. Cooper, 46 N. Y. Misc. 569, 92 N. Y. S. 822. So under Scots law, Bell's Principles, § 179. tract," unless the chance of impossibility was foreseen and the risk of it expressly or impliedly assumed by the employer. 18. Nor will the fact that a vessel is abandoned for good reason prevent the owner of the cargo from treating the contract of affreightment at an end. 19 17 Littell v. Webster County, 152 Iowa, 206, 131 N. W. 691, 694. "The action being on contract, and not for quantum meruit, plaintiffs, in order to recover, must show a substantial compliance with the terms thereof. They are bound by the terms of the agreement, and cannot escape because of impossibility to substantially comply with the provisions thereof. Monagham v. Vanatta, 144 Iowa, 119, 122 N. W. 610; Wernli v. Collins, 87 Iowa, 548, 54 N. W. 365; Hunt v. Tuttle, 125 Iowa, 676, 101 N. W. 509; Duncan v. Gray, 108 Iowa, 599, 79 N. W. 362; McCain v. City of Des Moines, 128 Iowa, 331, 103 N. W. 979. 18 Soley v. Jones, 208 Mass. 561, 95 N. E. 94, was an action for a balance alleged to be due under a contract in writing, whereby the plaintiff agreed to do for the defendant certain work on the Washington Street tunnel in Boston, which the defendant was engaged in constructing under a contract made by him with the city of Boston. The contract of the defendant with the city contained a clause giving transit commissioners the right to terminate it if the engineer should certify to them in writing that the contractor was not making such progress in the execution of the work as to indicate its completion within the required time. After part of the work under the plaintiff's contract had been done and paid for the defendant's contract with the city was terminated by the transit commissioners under that clause. The plaintiff's contract contained a provision that all the work should be done according to orders and directions and to the satisfaction of the transit com missioners or their authorized agents, and the plaintiff at the time of making his contract with the defendant had a copy of the defendant's contract with the city and was familiar with its provisions, including that relating to the commissioners' right to terminate it. It was held that, the plaintiff and the defendant having made their contract with knowledge of the possibility of such a termination of the defendant's contract with the city as had occurred and having failed to provide for such a contingency reasonably to be anticipated, the defendant was bound by his absolute promise to pay the plaintiff the contract price for the work stipulated for in his contract; so that the plaintiff was entitled to recover the unpaid balance of such contract price after deducting from it the reasonable cost of completing the work in accordance with the terms of his contract. 19 In H. Newsum & Co. Ltd., v. Bradley, [1917] 2 K. B. 112, 115, the court said: "A number of cases were cited to me, including The Cito, 7 P. D. 5, and The Arno, 72 L. T. 621. The law as laid down in those cases is that the abandonment of a vessel by its crew during a voyage, without any intention to retake possession, gives the owner of the cargo on board the right to treat the contract of affreightment as at an end. It may happen that after abandonment of a vessel its owner resumes possession before the cargo owner exercises his right to treat the contract as at an end, and the legal effect of such a resumption has never yet been decided. The point, however, Similarly where a ship is to proceed under a charter party to a given port and load a cargo, if the ship is delayed even by excepted perils, the ship owner, though excused from liability, cannot require the charterer to furnish a cargo.20 So where the charterer loads the vessel, and it is lost on the voyage, not only unpaid freight money cannot be recovered by the owner, 21 but any part of it paid in advance by the charterer may be recovered back.22 So where a plaintiff has been prevented by a supervening law from fulfilling his contract, he is not entitled to performance from his co-contractor.23 And where the subject-matter of a promise has been destroyed before transfer of risk the promisor cannot recover the consideration promised by his co-contractor, and if he has received it he must restore it.24 It should be observed, however, that a payment or promise may be made, not in consideration of performance, but of a risk of performance assumed by the other party. In such a case the fact that the party assuming the risk never becomes bound to perform gives no basis for the defence of failure of consideration.25 Whether a risk or does not arise in this case, for I find as a fact that, if the circumstances here show an abandonment of the vessel, the cargo owners exercised their right to put an end to the contract before the owners resumed their possession. The point for decision is whether there was an abandonment under the circumstances. In my view that is a question of fact. . . . "In the present case the master and crew abandoned the vessel under stress of enemy violence, but I do not think that this is different from a master and crew abandoning the vessel under stress of the violence of the weather, as was the case in The Cito, 7 P. D. 5, 9." 20 Jackson v. Union Marine Ins. Co., per Bramwell, B., L., R. 10 C. P. 125, 141; Poussard v. Spiers, 1 Q. B. D. 410, per Blackburn, J. See also Storer v. Gordon, 3 M. & S. 308. The contrary holding in Huron Barge Co. v. Turney, 71 Fed. 972, cannot be supported. 21 Gibson v. Sturge, 10 Exch. 622; Dakin v. Oxley, 15 C. B. (N. S.) 646; British, etc., Ins. Co. v. Southern Pac. Co., 72 Fed. 285, 18 C. C. A. 561, 38 U. S. App. 243. But if the goods are accepted by the owner at an intermediate port of distress a pro rata recovery is allowed. Dakin v. Oxley, supra. 22 Pitman v. Hooper, 3 Sumner, 50; Reina v. Cross, 6 Cal. 29; Griggs v. Austin, 3 Pick. 20, 22, 15 Am. Dec. 175; Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654; Phelps v. Williamson, 5 Sandf. 578; and see infra, § 1101. The law of continental Europe seems the same as that of America. See Watson v. Duykinck, 3 Johns. 335. actual performance is bargained for is a question, of fact with the presumption in a doubtful case in favor of the latter construction. § 839. Ignorance of the plaintiff's breach of contract when the defendant fails to perform. It is necessary for a plaintiff who seeks to excuse his own failure to perform a condition, to allege and prove that his failure was caused by the defendant. 26 Therefore, though facts exist which would justify the plaintiff in failing to perform the condition (though not making its performance impossible) his ignorance of them will be fatal to his case; since acts of which he was ignorant cannot have caused his failure to comply with the condition. The situation of a defendant, however, is different. He should be excused from liability if the plaintiff has failed in a material particular to perform his contract although the defendant at the time when he refused to perform or to continue performance was ignorant of the plaintiff's prior breach of obligation. The defendant's excuse in such a case, as has been seen, 27 is in substance failure of consideration, and it makes no difference whether or not not very satisfactory to the judges of recent times, it is held that freight advanced for the transportation of goods subsequently lost by the perils of the sea cannot be recovered back. De Silvale v. Kendall, 4 M. & S. 37; Allison v. Bristol Ins. Co., 1 App. Cas. 209, 226; Byrne v. Schiller, L. R. 6 Ex. 319. The result is now supported on the theory, which it seems is hardly tenable in fact, that the advance payment is not strictly freight, but is made in exchange for the chance of carriage. For the same reason it has been held in England that one who advanced money for the instruction of his son in a trade, cannot recover it back, if he who received it dies without giving the instruction. Whincup v. Hughes, L. R. 6 C. P. 78. In Walker v. Clay, 71 Ala. 799, a note payable in six months was given for a promise to defend a person accused of murder. It was held no defence that the trial 26 See supra, §§ 677, 808. |