Since the illness or death of a contractor does not, like fire or shipwreck, deprive the defendant of the fruits of part performance, the benefit resulting from such part performance is more obvious and the element of hardship to the defendant entirely wanting. As a result, it is generally held, in the United States, that the value of part performance may in such cases be recovered.1
1 Johnson v. Sims, 1800 (?), 1 Pet. Adm. (U. S., D. Pa.) 215; Fed. Cas., No. 7413; Cranmer v. Gernon, 1807, 2 Pet. Adm. (U. S., D. Pa.) 390; Fed. Cas., No. 3359; Pitman v. Hooper, 1838, 3 Sumn. (U. S. C. C.) 286; Fed. Cas., No. 11,186. And see Mackrell v. Simond, 1776, Abbott on "Shipping" (5th ed.), 333; (14th ed.), 743; Scott, "Cases on Quasi-Contracts," p. 621.
2 1807, 8 East 300.
3 In Johnson v. Sims, 1800, 1 Pet. Adm. (U. S., D. Pa.) 215, 216; Fed. Cas., No. 7413, a stipulation couched in precisely the same words as that in Appleby v. Dods was construed to mean, not that the sailor was not entitled to wages for the outward voyage, but merely that he was not entitled to demand such wages until the vessel arrived at the home port. Said the court: "I will never decree a forfeiture, or loss of wages, unless the law or agreement of parties is fully and clearly, both in expression and import, against the claim. It does not appear in this case that more than the usual wages were agreed to be paid to the mariner, though the clause in question is out of the common course."
4 7 & 8 Vict., c. 112, Sec. 17; 57 & 58 Vict., c. 60, Sec. 158 (Merchant Shipping Act, 1894).
5 Rev. Stat. U. S. Sec. Sec. 4525, 4526; The Charles D. Lane, 1901, 10G Fed. Rep. 746.
In England, consistently with other classes of cases, a recovery is denied,2 though Cutter v. Powell,3 which is generally regarded as a leading case for the English doctrine, is distinguishable, as is elsewhere shown (ante, Sec. 113), in that the terms of the contract plainly indicated the intention of the contractor to assume the risk of illness or death. An exception to the rule is recognized, moreover, in the case of domestic servants, who are by custom paid for the actual services rendered by them.4
1 Performance prevented by death: Wolfe v. Howes, 1859, 20 N. Y. 197, 75 Am. Dec. 388; Clark v. Gilbert, 1863, 26 N. Y. 279; 84 Am. Dec. 189; McClellan v. Harris, 1895, 7 S. D. 447; 64 N. W. 522; Lauda v. Shook, 1895, 87 Tex. 608; 30 S. W. 536, (death of one member of a law firm).
Performance prevented by illness: Ryan v. Dayton, 1856, 25 Conn. 188; 65 Am. Dec. 560; Coe v. Smith, 1853, 4 Ind. 79; 58 Am. Dec. 618; Stolle v. Stuart, 1908, 21 S. D. 643; 114 N. W. 1007; Fenton v. Clark, 1839, 11 Vt. 557; Patrick v. Putnam, 1855, 27 Vt. 759; Hubbard v. Belden, 1855, 27 Vt. 645. In Ryan v. Dayton, supra, the court said (p. 194): "Viewing the present as a contract for the personal services of the plaintiff, and which could only be performed by himself, we think that, from its nature, a condition was impliedly attached to it, that an inability to labor during a part of the time stipulated, produced by inevitable necessity, should so far constitute an excuse for not laboring during that period, that he should not thereby be deprived of a right to a reasonable compensation for the services performed by him under it: and that the rule that where a person by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, which properly understood, we do not intend to impugn, is not applicable to such a contract." But see Jennings v. Lyons, 1876, 39 Wis. 553 ; 20 Am. Rep. 57, allowing no recovery because illness of wife should have been foreseen.
In Alabama, a recovery was formerly denied : Green v. Linton, 1838, 7 Port. (Ala.) 133; 31 Am. Dec. 707; but the rule, in its application to contracts of personal service, was changed by statute. See Code of 1876, Sec. 2922; Dryer v. Lewis, 1877, 57 Ala. 551.
2 See Plymouth v. Throgmorton, 1688, 1 Salk. 65; Cutter v. Powell, 1795, 6 Term R. 320; Bayley v. Rimmell, 1836, 1 Mees. & Wels. 506.
3 1795, 6 Term R. 320.
4 See Eversley, "Domestic Relations" (3d ed.), p. 872.
It has been held, in a case where the plaintiff engaged that he and his wife should live in the defendant's house and maintain her for life, that the death of the plaintiff's wife made the contract impossible of performance and that the plaintiff might recover the value of the maintenance furnished during the wife's life.1
- An interesting extension of the principle is found in the cases in which unanticipated circumstances creating grave danger of serious physical injury or disease are held to have the same effect as actual illness - excusing default and entitling the contractor to the value of the services rendered in partial performance.2
1 Parker p. Macomber, 1892, 17 R. I. 674, 676; 24 Atl. 464; 16 L. R. A. 858, (Douglas, J., after holding that death of plaintiff's wife justified defendant in rescinding the contract: "The question is then presented whether a person who has rendered personal services under an entire contract, which the Act of God has prevented him from fully performing, can recover upon an implied assumpsit what those services are really worth. In case of the destruction of the fruits of the service so that neither party has the value of them, the loss must be adjusted according to the scope of the contract and the circumstances of the case, and different courts may come to diverse conclusions in cases which are very similar to each other. But when, as in this case, the defendant has received and retains the benefit of the service, we think that the plaintiff should recover. It is not just that one should benefit by the labor of another and make no return, when the event which ends the service happens without the fault of either party, and is not expressly or impliedly insured against in the agreement which induced the labor."). See also Jennings v. Lyon, 1876, 39 Wis. 553; 20 Am. Rep. 57.
2 Lakeman v. Pollard, 1857, 43 Me. 463; 69 Am. Dec. 77, (prevalence of cholera in vicinity); Walsh v. Fisher, 1899, 102 Wis. 172; 78 N. W. 437 ; 43 L. R. A. 810; 72 Am. St. Rep. 865, (threats of strikers to do bodily harm). Cf. School Township of Carthage v. Gray, 1894, 10 Ind. App. 428; 37 N. E. 1059, and Dewey v. Union School District; 1880, 43 Mich. 480; 5 N. W. 646; 38 Am. Rep. 206, which hold that the closing of a school by a school committee on account of the prevalence of a contagious disease does not excuse the town or district from the obligation to pay teachers' wages. It would seem that the court was influenced in these cases by the notion that the public should pay for its own protection. Says Graves, J., in Dewey v. Union School District (p. 483): " It was the misfortune of the district, and the district and not the plaintiff ought to pay for it." Stewart v. Loring, 1862, 5 Allen (Mass.) 306; 81 Am. Dec. 747, contra.