| Me. | Jul 15, 1841
The opinion of the Court was by
It is contended, that the sickness of the defendant, which was the act of God, and his consequent inability to fulfil his contract, does not defeat the right of the plaintiff, to recover damages for the breach. Cases have been cited where, upon express covenants, the performance of which had become impossible, without any fault in the covenanters, they were nevertheless held answerable in damages. These were doubtless all justified, under their peculiar circumstances. But in a contract, for the performance of personal manual labor, requiring health and strength, we think it must be understood to be subject to the implied condition, that health and
The Judge instructed the jury, that this would excuse performance ; and it does not appear, that the counsel for the plaintiff contended at the trial tor any other doctrine. He insisted, however, that he was entitled to damage, for his fruitless journey to Palermo, on the invitation of the defendant. It is a sufficient answer to this claim, if otherwise available, that it is not sued for in this action. It seems from 'the evidence, that the defendant might have labored a month or two the latter part of the stipulated period. But the contract was entire, beginning at a time when the days are shortest, and covering principally the season when the earth cannot be cultivated. The wages were to be at a certain monthly rate. The contract failing without the fault of the defendant, it would be neither just nor equitable, to hold him obliged to labor for the plaintiff, at the monthly wages -stipulated, when the days were longest, and labor in husbandry most valuable'. The plaintiff was not obliged to accept such a partial performance. Pie had a right to secure the services of another man, and might have had as many laborers as it was for his interest to employ. And in our judgment, the court below was justified in withholding the instructions requested.
Exceptions overruled.