This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A contract for services personal in their nature which, cannot be performed by deputy within the meaning of the contract is discharged by such sickness on the part of the person by whom such services are to be rendered as to incapacitate him from performing them.1 If no fault of his intervenes between the making of such contract and his sickness creating such conditions, he is not liable in damages for breach of such contract. Thus a contract for the services of an opera troupe is discharged by the sickness of the leading tenor, without whom the troupe could not perform.2 Under a contract of employment requiring the employee to give notice before leaving the service, such provision is discharged by the sickness of the employee.3 So if A agrees to marry B, and subsequently A, without his fault, develops a disease which makes it unsafe or improper for him to marry,4 as where sexual intercourse would shorten his life,5 or where without intervening fault, a venereal disease develops,6 A's contract is discharged absolutely if the physical disability is permanent in its nature; and if temporary, he is excused from liabilitv for breach by delay until such physical disability is removed.7 Sickness which does not make the marriage impossible is not, however, a discharge.8 In exceptional cases, apprehended illness may operate as a discharge. Thus where A agrees to purchase an interest as partner in B's business, the value of which depended on B's knowledge and business ability, A may avoid such contract where B's health becomes such as to make it doubtful whether he will be able to give his personal attention to the business.8
1 Powell v. Newell, 59 Minn. 406; 61 X. W. 335.
2 Spalding v. Eosa. 71 N. Y. 40; 27 Am. Rep. 7.
3 Harrington v. Iron Works Co., 119 Mass. 82; Fuller v. Brown, 11 Met. (Mass.) 440.
4 Shakleford v. Hamilton, 93 Ky. 80; 40 Am. St. Rep. 166; 15 L. R. A. 531; 19 S. W. 5; Allen v. Baker, 86 N. C. 91; 41 Am. Rep. 444; Sanders v. Coleman, 97 Va. 690;
47 L. R. A. 5S1; 34 S. E. 621. 5 Sanders v. Coleman, 97 Va. 690; 47 L. R. A. 581; 34 S. E. 621.
6 Trammel v. Vaughan, 158 Mo. 214; 81 Am. St. Rep. 302; 51 L. R. A. 854; 59 S. W. 79.
7 Trammel v. Vaughan, 158 Mo. 214; 81 Am. St. Rep. 302; 51 L. R. A. 854; 59 S. W. 79.
8 Smith v. Compton, 67 N. J. L. 548; 58 L. R. A. 480; 52 Atl. 386.