95 N.J.L. 277 | N.J. | 1921
The opinion of the court was delivered by
The plaintiff and defendant entered into an agreement in writing, under date of December 13th, 1918, by the terms of which the former rented to the latter a team of horses, a farm wagon and a set of double harness. They were delivered to the defendant upon the following expressed understanding: “To' give board to said horses, free of charge for their care, and for reasonable work, for a period of twelve weeks from above date, and to return said horses andi other property upon demand' in as good condition as they are at present.” During the period
As a general rule, where a party contracts expressly to do a thing not unlawful, the contractor must perform his agreement, and if, by some unforeseen accident, the performance is prevented, he must pay damages for not doing it. And there is no distinction between accidents that could be foreseen when the contract was entered into and those that could not have been foreseen. Where from the result of such an accident one of two innocent persons must sustain a loss, the law casts it upon him who' has agreed to sustain it, or, rather, leaves it where the agreement of the parties has put it, and will not insert for the benefit of one of the parties by construction an exception which the parties have, either by design or neglect, omitted to insert in their agreement. School Trustees v. Bennett, 27 N. J. L. 513; Middlesex Water Co. v. Knappmann Whiting Co., 64 Id. 240. But, as was stated in the case last cited, this general rule is not universally
In our opinion, the present case comes within the exception to the general rule stated in the Middlesex Water Co. case, and is controlled by the decision in Perlee v. Jeffcott, supra.
The rule to show cause will be made absolute.