1 On the same ground it has been very recently held that permanent illness of an apprentice, rendering it impossible for him to fulfil the contract of apprenticeship, is a good excuse even to his father when sued upon the covenants, although they are in terms absolute and unconditional, and although the plaintiff had no knowledge of the illness before commencement of the suit. Boast v. Firth, Law R. 4 C. P. 1 (1868). And see Caden v. Farwell, 98 Mass. 137 (1867). So if an employer of a servant die, his representative is not bound to continue the servant upon the balance of the time agreed on. Farrow v. Wilson, Law R. 4 C P. 744 (1869).
"In the Danube and Black Sea Company v. Xenos [11 C. B. (n. s.) 152], the defendant contracted with the plaintiff to receive certain goods on board a ship in London, on the 1st of August, and convey them to a distant port. In the month of July he gave notice to the plaintiff that the contract had been entered into by an agent without upon himself, he is bound thereby, notwithstanding the occurrence of any contingency; because, if he had chosen, he might his authority, and that he would not be bound by it. At a later period, but before the 1st of August, on the plaintiff formally insisting upon the contract, the defendant again denied that he was bound by it, and repeated his refusal to receive the goods, tendering another contract to the plaintiff, which he declared himself willing to enter into. On the 1st of August the defendant offered to receive the goods, but without declaring upon which contract he proposed to receive them, and without revoking his repudiation of the original contract. The plaintiff, having in the mean time entered into a contract with the owner of another ship, brought his action against the defendant for a breach of contract in not receiving the goods. This case upon the facts may be distinguished from Hochster v. De la Tour, inasmuch as the refusal to accept the goods under the original contract, though made before, was continued until and after the 1st of August, when the contract was to have been performed; and the action was not brought until after the 1st of August, so that the court might well hold that the defendant had committed a breach of contract by continuing the refusal and the repudiation until after the 1st of August. But undoubtedly, Erie, C. J., observes in this case, and it seems to have been the principle upon which the judgment of the court proceeded, ' that where there is an explicit declaration by the one party of his intention not to perform the contract on his part, which is accepted by the other as a breach of the contract, that beyond all doubt affords a cause of action.' And this decision was affirmed, though without any formal judgment, and with no reasons given by the Court of Exchequer Chamber. Such a state of circumstances as existed in both these cases no doubt renders it reasonable that the law should afford some relief to one who has been willing to perform his part of the contract, but finds himself reduced to the one or the other of the above alternatives, by the wrongful determination of the other contracting party to break his contract when the time for its performance shall arrive. I think, however, that it is to be regretted that in such a state of things a court of law should not have confined itself to the decision that the plaintiff might maintain a special action for damages, setting forth, in a declaration appropriately framed and with proper but due averments, the real facts of the case, and the renunciation on the part of the defendant of the contract into which he had entered, and the damage resulting to the plaintiff in either course of action which he might adopt in consequence of that renunciation.
1 Paradine v. Jane, Aleyn, 26, 27; Brick Pres. Church v. The Mayor, etc. of New York, 5 Cowen, 538.
"There might be a considerable difficulty in framing such a declaration, but I cannot think that the court, in order to escape that difficulty, should have introduced a fiction into this branch of the law, which, when their decision is applied to a contract of a wholly different nature and character from that upon which it proceeded, such as a promise to marry, have provided against it by stipulations in his contract.1 If, therefore, he contract absolutely to perform any thing which might be productive of great injustice and of anomalies and inconsistencies in the law, to which their attention can hardly have been directed. Supposing, however, that we are bound to hold these decisions as binding upon us, with respect to all such contracts as those upon which they were founded, the question which we have to consider in the case before us, is whether it is our duty to apply that decision to this action for an alleged breach of promise to marry the plaintiff upon or after the death of the defendant's father.
"It may be observed upon the case itself of Hochster v. De la Tour, that it is not only unsupported by any previous authority, but directly opposed to the principle of several cases to which it is now necessary to advert. In Leigh v. Paterson [2 Moore, 588], upon a contract to deliver tallow in all December, the defendant in October gave notice to the plaintiff that he could not deliver the tallow at all, and, in fact, renounced the contract. Action brought, judgment by default, and upon the writ of inquiry the jury were told that the defendant having put an end to the contract in October, the plaintiff ought not to be permitted to lie by and try the market, and that if he could have purchased the tallow in October at a less price then than in December, he was bound to do so. The jury assessed the damages accordingly. But upon the case coming before the court the rule for a new trial was made absolute, Dallas, C. J., observing 'that the contract was mutually made between the plaintiff and the defendant, and could therefore only be dissolved by the mutual consent of both parties;' and the plaintiff was held entitled to recover the difference between the price contracted for and the price on the 31st of December. It was, indeed, observed by the court that had the plaintiff assented to the contract being put an end to in October, it might have had the effect of terminating it; but it is nowhere suggested that the contract would thereupon have been broken, or that the plaintiff could have maintained an action for the breach of it.