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 contract provides for services which are personal in their nature, either with reference to the person by whom they were rendered or with reference to the person to whom they are rendered, the involuntary detention of such person in such a way as to make performance impossible operates as a discharge or as a suspension of such contract, according to circumstances.1 What amounts to a substantial period of time so as to operate as a discharge, is a question upon which, as on the remaining questions under this subject, there is comparatively little authority. A contract to act as superintendent and manager of a factory for the manufacture of clothing for a period of three years, is discharged by the arrest and detention of such manager and superintendent for a period of nearly two weeks in the busiest season of the year,2 although such arrest and detention are not due to his fault.3 Such manager and superintendent can not, on his release from imprisonment, tender his services and, on the refusal of his employer to permit him to re-enter his employment, maintain an action for damages for such refusal.4 A contract for the employment of a sailor is discharged by his imprisonment or involuntary detention which prevents him from performing the services required by his contract.5 If a contract of lease for a period of three years requires the lessee to live upon the land and to cultivate it and to pay a third of the crop to the lessor, the arrest and imprisonment of the lessee on a criminal charge for a period of about six months operates as a discharge of the contract at the election of the lessor,8 although the lease does not contain an express right of re-entry for default on the part of the lessee.7
19 Barrett v. Towne, 190 Mass. 487, 13 L. R. A. (N.S.) 643, 82 N. E. 698.
20 Barrett v. Towne, 190 Mass. 487, 13 L. R. A. (N.S.) 643, 82 N. E. 698.
1 Wiggins v. Jngleton, 2 Ld. Raym. 1211; Melville v. De Wolfe, 4 El. & Bl. 844; The Jack Park, 4 C. Rob. 308; Leopold v. Salkey, 89 Ill. 412, 31 Am. Rep. 93; Jinnings v. Amend, 101 Kan. 130, L. R. A. 1917F, 626, 165 Pac. 845; Penas v. Cherveny. 135 Minn. 427, L. P. A. 1917E, 655, 161 N. W. 150.
2 Leopold v. Salkey, 89 Ill. 412, 31 Am. Rep. 93.
3 Leopold v. Salkey, 89 Ill. 412, 31 Am. Rep. 93.
4 Leopold v. Salkey, 89 Ill. 412, 31 Am. Rep. 93.
5 Melville v. De Wolfe, 4 El. & Bl. 844;The Jack Park, 4 C. Rob. 308.
6 Jinnings v. Amend, 101 Kan. 130, L. R. A. 1917F, 626, 105 Pac. 845.
7 Jinnings v. Amend, 101 Kan. 130, L. R. A. 1917F, 626, 165 Pac. 845.
Contract for support is at least suspended during the involuntary detention of the person to whom support is to be furnished.8 If a child agrees to support his parent for life, and to furnish certain rooms in a specified house for residence purposes, such contract is suspended during the period in which such parent is confined in the hospital because of insanity,9 and the guardian of the parent can not enforce such contract.10
The imprisonment or involuntary detention of one of the parties has, at least, the effect of preventing his non-performance from amounting to a voluntary default.11 Accordingly he can recover the wages which were due at the time that he was arrested, although such arrest was due to his own misconduct.12 If an employe agreed to forfeit all wages due when he left his employment unless he gave two weeks' notice in advance, the fact that he had been arrested and imprisoned prevents such non-performance from being voluntary default on his part.13 Imprisonment is not a "voluntary" leaving of the employment,14 and a railway employe who is arrested and imprisoned on a criminal charge is entitled to an increase in pay for those who did not leave the employment voluntarily, unless such employe intended to secure his discharge from the employment by such conduct.15