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.
Whether an epidemic which renders the performance of a contract dangerous to life operates as a discharge of such contract, is a question upon which there has been a divergence of authority, even in cases in which the properly constituted authorities have forbidden the performance of the contract in question, in the interests of the public health. In most jurisdictions it seems to be held that such epidemic does not operate as a discharge.1 A contract whereby a teacher is employed is not discharged by the act of the board in closing the schools on account of an epidemic of smallpox,2 or diphtheria,3 so as to prevent the teacher from recovering for the period of employment if he is ready and willing to perform on his part. A contract to operate a mill is not discharged by an epidemic of smallpox in the neighborhood, at least if it was possible with due diligence to secure employes to take the places of those who left by reason of such epidemic.4
In other jurisdictions an epidemic which renders the performance of the contract in question dangerous to the public health is held to operate as a discharge.5 A contract to hold a baby show has been held to be discharged by an epidemic of infantile paralysis.6 A contract to work for a certain period is discharged by an epidemic of cholera in the neighborhood which makes performance of such contract dangerous;7 and the employe may recover reasonable compensation for the time for which he worked before the outbreak of such epidemic.8
1 1ndiana. School Town v. Gray, 10 Ind. App. 428, 37 N. E. 1059.
Michigan. Dewey v. School District, 43 Mich. 480, 38 Am. Rep. 206, 5 N. W. 646.
Massachusetts. Libby v. Douglas, 175 Mass. 128, 55 N. E. 808.
Texas. Randolph v. Sanders, 22 Tex Civ. App. 331, 54 S. W. 621.
Utah. McKay v. Barnett, 21 Utah 239, 50 L. R. A. 371, 60 Pac. 1100.
2 Dewey v. School District, 43 Mich. 480, 38 Am. Rep. 206, 5 N. W. 646; Randolph v. Sanders, 22 Tex. Civ. App. 331, 54 S. W. 621; McKay v. Barnett, 21 Utah 239, 50 L. R. A. 371, 60 Pac. 1100.
3 School Town v. Gray, 10 Ind. App. 428, 37 N. E. 1059; Libby v. Douglas, 175 Mass. 128, 55 N. E. 808.
4 Vale v. Suiter, 58 W. Va. 358, 52 S. E. 313.
5 Hanford v. Connecticut Fair Association, 92 Conn. 621, 103 Atl. 839;
Lakeman v. Pollard, 43 Me. 463, 69 Am. Dec 77.
6 Hanford v. Connecticut Fair Association, 92 Conn. 621, 103 Atl. 839. (See theory in dissenting opinion thai such epidemic is not a discharge until the executive department has forbidden such performance.)
The majority of the court said: "It is conceded that if a contract is con-trary to public policy it is void. As it is admitted that the holding of a baby show under the circumstances narrated would be highly dangerous to the health of the community, it must follow that such a show would be contrary to public policy. This court is now considering the sufficiency of an allegation, not how that allegation can be proved. The allegation that the baby show would be danger-oue to public health might be avoided by the plaintiff by alleging, if such is the fact, that effectual precautions had been taken to prevent the communication of the disease from one child to another, or by setting up any other fact making it clear that no harm could result to the public from the show. But the court can not regard the averment that the assemblage of a number of children as proposed would be 'highly' dangerous to the public health other than as a fact which the plaintiff must answer, either by denial or matter in avoidance.
"The court will not require the performance or award damages for a breach of a contract in which the public have so great an interest as the preservation of health, if the health is in fact endangered, no more than it would require one to be performed the tendency of which was immoral, or which interfered with the right of every one to earn a livelihood by a lawful occupation. Connors v. Connolly, 96 Conn. 641, 86 Atl. 600, 45 L. R. A. (N.S.) 564. The plaintiffs in their brief rely upon these cases: Libby v. Inhabitants of Douglas, 175 Mass. 128, 55 Atl. 808; Dewey v. Alpena School Dist., 43 Mich. 480, 5 N. W. 646, 88 Am. St. Rep. 206, and Gear et al, Trustees, v. Gray (Ind. App.), 37 N. E. 1059. These appear to be actions brought by school-teachers to recover salary when the schools had been closed by reason of the prevalence of some contagious or infectious disease in the community. There is a difference between a contract to teach school and one to promote and manage a baby show. Teaching proper subjects can never be unlawful or contrary to public policy, though the assemblage of a number of children in one room might become very harmful. The teacher has usually no control over the attendance in his school. The baby show, however, would be highly dangerous to health, and this is just what the parties have agreed to promote and carry out for their mutual profit." Handford v. Connecticut Fair Association, 92 Conn. 621, 103 Atl. 839.
7 Lakeman v. Pollard, 43 Me. 463, 69 Am. Dec. 77.
"The plaintiff was under no obligation to imperil his life by remaining at work in the vicinity of a prevailing epidemic so dangerous in its character that a man of ordinary care and prudence, in the exercise of those qualities, would have been justified in leaving by reason of it; nor does it make any difference that the men who remained there at work after the plaintiff left were healthy, and continued to be so. He could not then have had any certain knowledge of the extent of his danger. He might have been in imminent peril, or he might have been influenced by unreasonable apprehensions. He must, necessarily, have acted at his peril, under the guidance of hie judgment.
"The propriety of his conduct in leaving his work at that time must be determined by examing the state of facts as then existing. When the laborer has adequate cause to justify an omission to fulfil his contract, such omission can not be regarded as his fault. Whether or not the plaintiff had such cause was a question of fact, to be determined by the jury, upon the evidence."
8 Lakeman v. Pollard, 43 Me. 468, 69 Am. Dec 77.
A contract of employment is said to be discharged if the employe is justified in believing, from the conduct and threats of strikers, that he will be in danger of serious bodily injury if he continues to work.9