Sec 322

With alternative and generic obligations impossibility is not a defence, unless it meets every contingency in which the work promised could be performed. An example of the generic obligation is to be found, in the Roman law, in the promise of operae, when the day in which the operae are to be performed is not designated, or the person who is to perform the operae is left undetermined.4 In the last case applies the maxim genus nonperit; impossibility cannot be a defence, since it cannot be said that obtaining a laborer of an indeterminate class is impossible. - It may be, however, that a contract for work is made dependent upon some particular thing which has ceased to be.5 Transport, for instance, is to be effected in a particular ship, which ship alone has contrivances adapted to the due conveyance of the particular kind of goods to be carried. The loss of this ship, without fault of the party so contracting, would be a defence to a suit for failure in carrying these goods in this way.1 Where, in other words, the sole agency of performing a contract for work is destroyed, without fault of either party, there is a cause of action to neither.2 Hence, a fatal contagious disease at a place where a workman contracted to work, may be set up as a defence to a suit against him for non-performance of his contract.3 It is otherwise, however, when other modes of performing the work can be found, though at great additional cost to the promisor; and, hence, the burning of a house under construction is, as is elsewhere seen, no defence to a suit against a contractor for non-performance of his contract to build the house.4 - Hiring of labor (loeatio operarum) has a close relationship, in this connection, so Mommsen argues,5 to hiring of things. It is of the essence of both contracts that they should not be regarded as fulfilled until the work is performed. The transaction is to be completed in futuro. "Opera in actu consistit; nec ante in rerum natura est, quam si dies venit, quo praestanda est; quam admodum cum stipulamur, quod ex Arethusa natum erit." Nor is the likeness limited to this feature. The several parts of the service in the loeatio ope-rarum corresponded with the several parts of the price paid in the same way as the several periods of the enjoyment of a thing hired correspond with the several parts of the price paid for the hiring. Hence, the duties of the employee, in the contract for labor, are divisible, as are the duties of the lessee of a thing. After a critical and elaborate review of the authorities to this effect, Mommsen states the conclusion to be that the employee {locator operarum), in cases where the further performance is broken up by casus occurring without his fault, cannot recover the price of services beyond those actually rendered; but that he can recover damages for his losses on the whole contract in all cases in which performance is arrested by the misconduct of the employer, or by the employer throwing up the contract unless under the stress of necessity. On the other hand, the employee cannot recover for services whose performance became impossible without the employer's fault; and, hence, when a laborer is employed to work for a series of days in a particular building, the burning of the building stops the employer's liability for wages. In such case wages can only be recovered for the work actually performed. Whether, however, when the price is fixed for the entire period, time is the sole standard of reduction, depends upon the peculiar terms of the contract and the circumstances of the concrete case. Frequently, in contracts of this class, there is a rising scale of prices, conditioned upon the assumed growing capacity of the employee. In such cases, the sum to be recovered by the employee, if the employer is held liable, may be larger than it would be if the contract price alone was followed. - In case of the employee's temporary sickness, then, if the wages are so much for each day's work, he can only recover for the days he was working; though, when the wages are not so adjusted, but a salary is fixed for a specific extended period of time, then the inference is that short sickuesses are not to be deducted. Whether the contract can be rescinded depends upon whether the casus is such as to interfere with the future performance of the contract. The question in our own practice is hereafter distinctively considered.1

Subsequent impossibility of performance a defence to suit on contract for work.

1 Boast v. Firth, L. R. 4 C. P. 1, cited supra, sec 300; infra, sec 323, 613. See Simeon v. Watson, 46 L. J. C. P. 679; Caden v. Farwell, 98 Mass. 137.

2 M'Neill v. Reid, 9 Bing. 68; Leake, 2d ed. 698.

3 Bayley, J., Hughes v. Humphreys, 6 B. & C. 680; and see supra, sec 311.

4 L. 54, sec 1, D. de V. 0.; Mommsen, op. cit. 53.

5 See for cases where covenants to mine are vacated by failure of miner, supra, sec 298.

1 Mommsen, ut supra; see supra, sec 308.

2 Supra, sec 300; Appleby v. Meyers, L. R. 2 C. P. 651; Brumby v. Smith, 3 Ala. 723.

3 Lakeman v. Pollard, 43 Me. 463.

4 Adams v. Nichols, 19 Pick. 275; see infra, sec 326, 714.

5 Op. cit. 353.