4 Ala. 336 | Ala. | 1842
It is an admitted principle of the common law, that where a party engages absolutely to do an act, the performance is not excused by inevitable accident, or other contingency not provided for by the contract of the parties. The rule is otherwise where the law casts a duty on the party ; there the performance shall be excused, if rendered impossible by the interposition of Providence. [Chitty on Con. 4 Am. ed. 567, and cases there cited; Shubrick v. Salmond, 3 Burr. Rep. 1637; Parker v. Hodgson, 3 M. & S. Rep. 267; 4 Dane’s Ab. 469; 3 id. 601.]
In Perry v. Hewlett, [5 Porter’s Rep. 308,] the law was admitted to be as we have stated it, yet it was held, that a covenant to return a slave hired, on a certain day was discharged by proof that the slave had died before the day without the fault of the hirer. The Court distinguished between those cases, where although the act of God caused a destruction of the thing, yet its reparation was possible. . Thus, if a lessee covenant to repair a house, its destruction by lightning will not excuse a failure to rebuild; but a covenant to redeliver the premises to the landlord in as good a condition as the lessee re
The contract of the intestate required his personal services and could not be performed by a substitute, and from its nature must have been made upon the implied condition that health and life permitted its performance; such at least is the conclusion inferrable from the authorities cited. But although the intestate’s death operated a discharge of the contract for service, it by no means follows that his administratrix is entitled to recover a pro rata compensation for the time he served. If the undertaking of the intestate was to perform the duties of an overseer on the defendant’s plantation for the year 1839, and in consideration thereof receive at the end of the year six hundred dollars, then the liability of the defendant to pay was conditional, dependent upon the performance of the intestate’s contract. To entitle the plaintiff to recover it is incumbent on her to show, that every thing had been done on which the right to demand payment depended. Cutter v. Powell, [6 T. Rep. 320,] is a leading case to this point. That was an ae'tion of assumpsit for work and labor done by the plaintiff’s intestate, to which the defendant pleaded the general issue. The facts were these; the intestate hired a second mate upon a ship for a voyage from Jamaica to Liverpool, his employer subscribed and delivered to him a note for the payment of thirty guineas, tén days after the arrival of the vessel at the port of destination, “provided he proceeds, continues and does his duty as second mate in the said ship from, hence to Liverpool.” The intestate entered upon the service as agreed, and died at sea, while the ship was performing the voyage, having
It has been often decided, and may be regarded as a settled principle of law, that where one has undertaken to serve another- for a definite time, at certain wages, or where an entire contract has been entered into for the performance of a number of acts, the servicé or labor is a condition precedent to the right to demand payment; and it is not competent for a party, after having performed his contract in part, causelessly to decline proceeding further in it, and recover upon a quantum meruit. Pettigrew v. Bishop, 3 Ala. Rep. 440; Turner v. Robinson, 6 C. & P. Rep. 15; 5 B. & A. Rep. 789; Hulle v. Heightman, 2 East Rep. 145 ; Ellis v. Hamlin, 3 Taunt. Rep. 52; Jesse v. Roy, 1 C. M. & R. Rep. 342; Sinclair v. Bowles, 9 B. & C. Rep. 92; Roberts v. Havelock, 3 B. & Ad. Rep. 404; Philbrook v. Belknap, 6 Verm. Rep. 383 ; Hair v. Bell, id. 35; Stark v. Parker, 2 Pick. Rep. 267; Willington v. West Boylston,4 id. 103; Chandler v. Thurston, 10 id. 209; McClure v. Pyatt, 4 McC. Rep. 26; Byrd v. Boyd, id. 246; Shaw v. Turnpike Co. 2 Pennsyl. Rep. 454; Rounds v. Baxter, 4 Greenl. Rep. 454; McMillan v. Vanderlip, 12 Johns. Rep. 165; Norris v. Moore, 3 Ala. Rep. N. S. 676 ; Brumby v. Smith, id. 123.]
There are also a class of cases which proceed upon the ground that there can be no recovery upon a quantum meruit, or general indebitatus assumpsit for any thing done under a special agreement, which remains open. [Hulle v. Heightman, 2 East Rep. 145; Watkins v. Hodges, &c. 6 H. & Johns. Rep. 38. So there are cases in which it is decided if the terms
W e have seen that the death of one of the parties will not rescind an entire contract, the performance of which was necessary to entitle him to demand the payment of money, so as to authorize his personal representative to recover upon a quantum meruit. The rescission of the contract, where neither party is in fault, or it is not provided for by its terms, as a general rule, requires the assent of both parties. [Chitty on Con. 4 Am. ed. 572-3-4.]
None of the principles we have stated in regard to special contracts, or conditions precedent, show that they are abrogated or dispensed with by death, as to the party who was to do the prior act. True if there has been a part performance, by
It is supposed by the defendant’s counsel, that this Court, in Greene v. Linton et al. [7 Poter’s Rep. 133,] determined that it was competent for a party who was prevented by sickness from performing a year’s labor, according to his contract, to recover a compensation pro rata for such time as he had rendered service. In that case the Court say, “ If, by the contract of the parlies, the plaintiff has stipulated absolutely, that he will serve the defendant for twelve months, and the service for the whole time is a condition to be performed before he can be entitled to any compensation, there is an end of the case; because, by his own statement, he admits that during a portion of the time, he did not render the services contemplated by the agreement.5’ The Court was of opinion that the nature of the contract, the object of it, and the intention of the parties,, indicated that a complete performance was not a prerequisite to the plaintiff’s right to recover a proper equivalent for his services; that as the plaintiff' did work in the blacksmith shop, the profits derived from which were susceptible of exact estimation, the acceptance and appropriation of those profits form
In the .case at bar, the Court erred in refusing to charge the jury that if the intestate’s contract was entire, and according to the stipulation of the parties was to be performed in toto before the defendant became liable to pay his wages, the plaintiff could not recover without proof of a complete performance. The intestate’s services, up to the time of his death, were not-susceptible of appreciation, and, besides, were accepted with the express understanding that they would be continued .throughout the year.
Plowever just it might be to permit recoveries in all cases where the party to be paid has been prevented from performing his contract by death, w.e cannot modify the agreement of parties so as to effect such a result. We must execute them as they have been made, according to those principles which have been sanctioned both by time and authority.
We have only to add that the judgment of the Circuit Court is reversed and the cause remanded. •