Same - Incapacity For Personal Services

A contract which has for its object the rendering of personal services is discharged by the death or incapacitating illness of the promisor.80 In an action for damage sustained by a breach of

87 Taylor v. Caldwell, 3 Best & S. 826. See "Contracts," Dec. Dig. (Key-No.) § 809; Cent. Dig. §§ 1444-1446.

88Rugg v. Minett, 11 East, 210; Howell v. Coupland, 1 Q. B. Div. 258; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Thompson v. Gould, 20 Pick. (Mass.) 134, 139; Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65; Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325; McMillan v. Fox, 90 Wis. 173, 62 N. W. 1052. So where goods are to be manufactured in particular factory, which is destroyed. Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215. Or a crop is to be grown on a particular piece of land, and the crop fails. Howell v. Coupland, 1 Q. B. Div. 258. Otherwise where no particular land is specified. ANDERSON v. MAY, 50 Minn. 280, 52 N. W. 530, 17 L. R. A. 555, 36 Am. St Rep. 642, Throckmorton Cas. Contracts, 404. See "Sales," Dec. Dig. (Key-No.) § 172; Cent. Dig. §§ 425-430.

89 Martin Emerich Outfitting Co. v. Siegel, Cooper & Co., 237 I11. 610, 86 N. E. 1104, 20 L. R. A. (N. S.) 1114 [affirming 141 I11. App. 147], holding that the lessee is not entitled to space in another building in which the lessor had obtained a new location. See "Contracts," Dec. Dig. (Key-No.) § 309; Cent. Dig. §§ 1444-1446.

90 Boast v. Firth, LR.4C.P.1; Underwood v. Lewis [1894] 2 Q. B. 306; Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7; Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57; Lakeman v. Pollard, 43 Me 463, 69 Am Dec. 77; Shultz v. Johnson's Adm'r, 5 B. Mon. (Ky.) 497; Harrington v. Iron-Works Co., 119 Mass. 82; Fuller v. Brown, 11 Metc. (Mass.) 440; Scully v. Kirk-patrick, 79 Pa. 324, 21 Am. Rep. 62; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444; Hubbard v. Belden, 27 Vt 645; Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117, 26 L. R. A. 416, 44 Am. St. Rep. 370; Smith v. Preston's Estate, 170 I11. 179, 48 N. E. 688; Blakely v. Sousa, 197 Pa. 305, 47 Atl. 286, 80 Am. St. Rep. 821; Walsh v. Fisher, 102 Wis. 172, 78 N. W. 437, 43 L. R. A. 810, 72 Am. St. Rep. 865 (violence of strikers); Dow v. Bank, 88 Minn. 355, 93 N. W. 121. So the death of the employer discharges the employe from performance, Farrow v. Wilson, L. R. 4 C. P. 589; Yerrington v. Greene, 7 R. I. 589, 84 Am. Dec. 578, but not necessarily the death of one of two joint employers. Martin v. Hunt, 1 Allen (Mass.) 419; Hughes v. Gross, 166 Mass. 61, 43 N. E. 1031, 32 L. R. A. 620, 55 Am. St. Rep. 375. But the death of one member of a law firm which has contracted to conduct a case terminates the contract, the employment being personal. Wright v. McCampbell, 75 Tex. 644, 13 S. W. 293; Landa v. Shook, 87 Tex. 608, 30 S. W. 536; Baxter v. Billings, 83 Fed. 790, 28 C. C. A. 85. See, also, Hartford Fire Ins. Co. v. Wilcontract on the part of a musician, who, having promised to perform at a concert, was prevented from doing- so by a dangerous illness, the law governing the case was thus stated: "This is a contract to perform a service which no deputy could perform, and which, in case of death, could not be performed by the executors of the deceased; and I am of opinion that by virtue of the terms of the original bargain incapacity of body or mind in the performer, without default on his or her part, is an excuse for nonperformance. Of course the parties might expressly contract that incapacity should not excuse, and thus preclude the condition of health from being annexed to their agreement. Here they have not done so, and, as they have been silent on that point, the contract must, in my judgment, be taken to have been conditional, and not absolute." 91

On the same principle it has been held that where, from the prevalence of a contagious and fatal disease in the vicinity of the place where one has contracted to labor for a specified time, the danger is such as to render it unsafe and unreasonable for men of ordinary care and common prudence to remain there, it is a sufficient cause for not fulfilling the contract.92 The rule that the death of a person discharges his contract to render personal services has been held not to apply where the services are of such a character that they may be just as well performed by his personal representative.93 Where performance is thus rendered impossible by death or incapacity, the contractor or his personal representative may recover upon a quantum meruit, subject to the right of the defendant to have the recovery reduced by the amount of any loss which he may have suffered from nonperformance of the contract.94 So the unearned portion of a consideration cox, 57 I11. 180; Salisbury v. Brisbane, 61 N. Y. 617; Martine v. Insurance Soc, 53 N. Y. 339, 13 Am. Rep. 529. See "Master and Servant;' Dec. Dig. (Key-No.) § 27; Cent. Dig. § 27.

91 Robinson v. Davison, L. R. 6 Exch. 269. See "Master and Servant," Dec. Dig. (Key-No.) § 27; Cent. Dig. § 27.

92Lakeman v. Pollard, 43 Me. 463, 69 Am. Dec. 77. But see Dewey v. School Dist, 43 Mich. 480, 5 N. W. 646, 38 Am. Rep. 206. See "Contracts:' Dec. Dig. (Key-No.) § 819; Cent. Dig. § 1406; "Schools and School Districts," Dec. Dig. (Key-No.) § 144; Cent. Dig. § 809.

93Hawkins v. Ball's Adm'r, 18 B. Mon. (Ky.) 816, 68 Am. Dec. 755; Siler v. Gray, 86 N. C. 566; Janin v. Browne. 59 Cal. 37; BILLINGS' APPEAL, 106 Pa. 558, Throckmorton Cas. Contracts, 330; Howe Sewing Much. Co. v, Rosensteel (C. C.) 24 Fed. 583; Shultz v. Johnson's Adm'r, 5 B. Mon. (Ky.) 407; Volk v. Stowell, 98 Wis. 385, 74 N. W. 118. And see generally for assignment of contractual obligations by death, ante p. 473. See "Master and] Servants Dec. Dig. (Key-No.) § 28; Cent. Dig. § 27.

94 Patrick v. Putnam, 27 Vt. 759; Wolfe v. Howes, 20 N. Y. 197, 75 Am paid in advance for services the performance of which is prevented by the death or incapacitating illness of the promisor may be recovered from him or his estate.95