1 Hubbard v. Belden, 27 Vt. 645 (1855); Fenton v. Clark, 11 Vt. 557; Robinson v. Davison, Law R. 6 Exch. 269 (1871). See post, § 51; Patrick v. Putnam, 27 Vt. 759 (1855).
2 Whitcomb v. Gilman, 35 Vt. 297 (1862); Provost v. Harwood, 29 Vt. 219(1857).
3 Cahill v. Patterson, 30 Vt. 592 (1858).
4 But the employer, in case of a voluntary abandonment of such a contract by the servant, may waive his advantage, as by a tender of payment for the actual time of service. Patnote v. Sanders, 41 Vt. 66 (1868).
5 1 Story, Eq. Jur. 470; Ex parte Smyth, 1 Swanst. 338; and the reporter's note and cases cited. 1 Wms. Saunders, 320 d, note (c); Chanter v. Leese, 4 M. & W. 295; 5 M. & W. 698.
by a written contract to go a certain voyage, and do his duty on board during the whole of the voyage, for which he agreed to give him thirty guineas, and the sailor died before the voyage was finished, it was held that the contract was entire, and that the whole service, which was a condition precedent to the payment of the wages, not having been performed, no part of the thirty guineas could be recovered.1 But this case may be explained by the fact that the thirty guineas was an extra price for the voyage, much larger than the ordinary wages would amount to for the length of such a voyage, and that both parties understood and intended that the contract should be entire, and that the sailor should take the risk of the whole voyage. In other tribunals, and in cases where there is no expressly entire contract, the death, or sickness of the laborer, is a sufficient excuse for non-performance, and he may recover pro tanto, for the time he has labored.2 However, if the contract is positive and absolute, it must be performed, though it may have become unexpectedly burdensome, or impossible, by unforeseen events; or the contractor will be liable in damages for the breach.3 And alter performance the party is not required to make up lost time before he can claim what is plete performance of the whole contract be rendered impossible by overwhelming necessity, or be occasioned by the negligence of the party.1 If the contract be not completely executed, no action can be maintained for the consideration. Nor is this doctrine confined to the common law; for courts of equity have universally adopted the same rule, except in some few cases, in which there were peculiarly equitable circumstances, and which were founded in fraud, or surprise, or mistake.2
1 Cutter v. Powell, 6 T. R. 326; 3 Vin. Abr. Apportionment; Appleby v. Dods, 8 East, 300; Abbott on Shipping (Story's ed. 1829), 447, n. 1; Grimman v. Legge, 8 B. & C. 326; 2 Man. & Ry. 438; Paradine v. Jane, Aleyn, 26; Jennings v. Camp, 13 Johns. 94; Reab v. Moor, 19 Johns. 337; Faxon v. Mansfield, 2 Mass. 147; Stark v. Parker, 2 Pick. 267; Ex parte Smyth, 1 Swanst. 338; the reporter's note and cases cited.
2 Fenton v. Clark, 11 Vt. 557; Fuller v. Brown, 11 Met. 440.
8 Brown v. Royal Ins. Co., 1 El. & El. 853 (1859); Hall v. Wright, EL, B. & E. 746 (1858); Schwartz v. Saunders, 46 111. 18 (1867); Taylor v. Caldwell, 3 B. & S. 826 (1863). In this case the court held that the contract was not absolute. Blackburn, J., in delivering judgment said: "This rule is only applicable when the contract is positive and absolute, and not subject to any condition, either express or implied. And there are authorities which, as we think, establish the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; then, in the absence of any express or implied warranty that the thing shall exist, due.1 So, also, if a party agree to work for a year, for the certain sum of one hundred and twenty dollars, and before the expiration of the year, abandon such agreement without the consent of the other party, he cannot recover upon a quantum meruit.2 The same is true of a contract for teaching school for a definite term; if the teacher leave before the term closes, without excuse, he can claim nothing for his part performance.8 So, also, where a ship was let to freight at a certain rate per month, to be paid on her final discharge at the end of the voyage, and she was lost before the voyage was completed, it was held that no portion of the freight could be recovered.4 A contract by a railroad company to furnish six cars, on notice, for an excursion party, for $56 each, has been held an entire contract, and a demand for only four was held not sufficient to make the company liable for not furnishing any.5 So a contract to deliver on board a vessel 100 tons of oil-cake, at $48 per ton, has been thought not complied with by tendering 107 tons and demanding payment for the whole.6 In all these cases, it is wholly immaterial whether the exact and comthe contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor." See Howell v. Knickerbocker Life Ins. Co., 44 N. Y. 276 (1871); Clifford v. Watts, Law R. 5 C. P. 577 (1870), an interesting case containing a review of the authorities. See also § 51, post.
1 McDonald v. Montague, 30 Vt. 357 (1858).
2 Stark v. Parker, 2 Pick. 267; Waddington v. Oliver, 2 N. R. 61; Byrd v. Boyd, 4 McCord, 246; Witlington v. West Boylston, 4 Pick. 103; Chandler v. Thurston, 10 Pick. 209; Shaw v. Turnpike Co., 2 Penn. 454; Huttman v. Boulnois, 2 C. & P. 510; Philbrook v. Belknap, 6 Vt. 383; Hair v. Bell, 6 Vt. 35; Winn v. Southgate, 17 Vt. 355; Aaron v. Moore, 34 Mo. 79; Olmstead v. Beale, 19 Pick. 528; Ranger v. Great Western Ry Co., 5 H. L. Cas. 72 (1854). But see contra, Britton v. Turner, 6 N. H. 481.