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 can not 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 A contract to perform stenographic and clerical services for one-half of the fees received by the employer is discharged by sickness of the employe which prevents him from such services for almost half of the time for which the contract was to run.2 If no fault of his intervenes between the making of such contract and his sickness creating such conditions, the party who becomes ill is not liable in damages for breach of such contract. 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.3 Under a contract of employment requiring the employe to give notice before leaving the service, such provision is discharged by the sickness of the employe.4 A contract to pay tuition is discharged by the sickness of the pupil which prevents him from attending at all.5
12 Hovey v. Blakeman, 4 Ves. Jr. 696. In re Overweg , 1 Ch. 209.
13 Hovey v. Blakeman, 4 Ves. Jr. 596.
14 In re Overweg , 1 Ch. 209.
15 Gordon v. Stubbs, 36 La. Ann. 625; Merry v. Lynch, 68 Me. 94; White v. Allen, 133 Mass. 423; Knapp v. Alvord, 10 Paige (N. Y.) 205, 40 Am. Dec 241.
16 Arkansas. Hudgins v. Morrow, 47 Ark. 515, 2 S. W. 104.
Illinois. Strother v. Law, 54 Ill. 413.
Maryland. Barrick v. Horner, 78 Md. 253, 44 Am. St. Rep. 283, 27 Atl.1111. 1111.
Massachusetts. Conners v. Holland, 113 Mass. 50.
Missouri. Beatie v. Butler, 21 Mo. 313, 64 Am. Dec. 234.
North Carolina. Carter v. Slocomb, 122 X. Car. 475, 65 Am. St. Rep. 714, 29 N. E. 720.
South Dakota. Reilly v. Phillips, 4 S. D. 604, 57 N. W. 780.
17 Wilburn v. Spofford, 36 Tenn. (4 Sneed) 698; Hodges v. Gill, 68 Tenn. (9 Baxt.) 378.
18 Miller v. McDonald, 72 Ga. 20; Wilkins v. McGehee, 86 Ga. 764, 13 S. E. 84; Johnson v. Johnson, 27 S. Car. 300, 13 Am. St. Rep. 636, 3 S. E. 606; Buchanan v. Monroe, 22 Tex. 537.
11n re Oldfield, 175 Ia. 118, L. R. A. 1916D, 1260, 156 N. W. 977; Powell v. Newell, 59 Minn. 406, 61 N. W. 335; Davidson v. Gaskill, 32 Okla. 40, 38 L. R. A. (N.S.) 692, 121 Pac. 649.
It has been suggested that the fact that sickness, death or physical incapacity might have been foreseen, prevents such facts from operating as a discharge.6 It has been said that a contract by a married woman for personal services is not discharged by her pregnancy,7 on the theory that she might have anticipated such condition; and that, accordingly, she intended to assume such risk.8 Since some illness is to be anticipated, and since death is inevitable, a rigid application of this theory would leave nothing of the general doctrine of impossibility.