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.
If A and B have entered into a contract to intermarry, and subsequently without the fault of either A becomes so ill that marriage in the ordinary sense of the term would be impossible or would shorten his life, the question of the effect of such physical condition and a discharge of the contract may come up in two ways: A may demand performance of the contract, and B may set up A's physical condition as a discharge. On the other hand, B may demand performance of the contract at least as far as the marriage ceremony itself is concerned, and B may express himself as willing to waive any further performance in case A's physical condition makes further performance impossible. If A, without the fault of either party, has developed a disease which makes marriage in the ordinary sense impracticable, such physical condition of A is held to operate as a discharge to B if B wishes to treat such fact as a discharge.1
2 Davidson v. Gaskill, 32 Okla. 40, 38 L. R. A. (N.S.) 602, 121 Pac. 649.
3 Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7.
4 Harrington v. Iron Works Co., 119 Mass. 82; Fuller v. Brown, 52 Mass. (11 Met.) 440.
5 Stewart v. Loring, 87 Mass. (5 All.) 306, 81 Am. Dec. 747.
6 Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57.
7 Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57.
8 Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57.
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,2 as where sexual intercourse would shorten his life,3 or where without intervening fault a venereal disease develops,4 A's contract is discharged absolutely if the physical disability is permanent in its nature; and if temporary he is excused from liability for breach by delay until such physical disability is removed.5 If A and B enter into a contract to intermarry, and B subsequently refuses performance on learning that A has an abscess in his breast, A can not recover damages for B's refusal.6 In this case the doctrine of impossibility was not discussed by name at least, and the ground for the decision was said to be the fact that "it would be most mischievous to compel parties to marry who could never live happily together."7
The ill health of the plaintiff, existing when the engagement was entered into and known to the defendant, is not an excuse for breach of promise.8 If A and B have agreed to intermarry at a certain time, and A postpones performance because he realizes he is becoming insane, such postponement does not amount to a breach; and if soon after he becomes insane, and dies while insane, no cause of action on the contract arises.9
1 Travis v. Schnebly, C8 Wash. 1, 40 L. R. A. (N.S.) 585, 122 Pac. 316 (a case of floating kidney and nervous prostration).
2 In re Oldfleld, 175 Ia. 118, L. R. A. 1916D, 1260, 156 N. W. 977; Shakle-ford v. Hamilton, 93 Ky. 80, 40 Am. St. Rop. 166, 15 L. R. A 531, 19 S. W. 5; Allen v. Baker, 86 N. Car. 91, 41 Am. Rep. 444; Sanders v. Coleman, 97 Va. 690, 47 L. R. A. 581, 34 S. E. 621.
Contra, on the theory that he can at least marry the woman in name only, giving to her the status of his wife, and that his sickness does not discharge his obligation to perform to this extent. Hall v. Wright, El. B. & El. 746 (a case of tuberculosis); Smith v. Crompton, 67 N. J. L. 548, 58 L. R. A. 480, 52 Atl. 386 (a case of urinary disease).
3 In re Oldfield, 175 Ia. 118, L. R. A. 1916D, 1260, 156, N. W. 977 (pernicious anemia).
For a case on identical fact*, but not involving the question of impossibility, see Parsons v. Trowbridge, 226 Fed. 15; Sanders v. Coleman, 97 Va. 690, 47 L. R. A. 581, 34 S. E. 621.
4 Trammel v. Vaughan, 158 Mo. 214, 81 Am. St. Rep. 302, 51 L. R. A. 854, 59 S. W. 79.
5 Trammel v. Vaughan, 158 Mo. 214, SI Am. St. Rep. 302, 51 L. R. A. 854, 59 S. W. 79.
6 Atchinson v. Baker, 2 Peake N. P. 103.
7 Atchinson v. Baker, 2 Peake, N. P. 103.
8 Lemke v. Franzenburg, 159 Ia. 466, 141 N. W. 332.
Sickness which does not make the marriage impossible is not, however, a discharge.10 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.11