Lead Opinion

Hall, J,

The plaintiff’s counsel make the point that the appeal should be dismissed. The point is based upon the statement contained in the defendant’s abstract of the record that this case was submitted tp the circuit court on the agreed statement of facts on May 7, 1886.

The date is evidently a clerical error, and the erroi has been corrected in the copies of the abstract on file in this court, the year having been changed from 1886 to 1885. But the abstract of the record further on corrects itself, for further on it states that the court, under the instructions and the evidence, found the issues and rendered judgment for the plaintiff on November 3r 1885. The appeal will not be dismissed.

II.

Was the burning of the school house, caused by inevitable accident, a good defence for the defendant as to the portion of the term subsequent thereto ?

The rule is, “that when a party by his own contract creates a duty or charge upon himself, he is bound td make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” Paradine v. Jane, Aleyn, 26; Harrison v. Railroad, 74 Mo. 371.

The principle upon which the rule is based would seem to be, from the very language of the rule, the question,- what .was the real intention of the parties? “because,” as stated by the rule, if the party did not so intend, “he might have provided against it by his contract.” And it has been said that, “ The great orín*219ciple upon which all the adjudged cases” (upon this subject) “in all the courts is based, is the question, what was the real intention of the parties? The law gives a reasonable construction to all contracts.” Wolfe v. Homes, 20 N. Y. 200; McMillan v. Vanderlip, 12 Johns. 165.

That the rule on the subject is simply the enforcement of the intention of the parties to the contract is found from a study of the adjudicated cases and text books treating of this subject. Thus, where the lessee contracts unconditionally to pay rent for a house, “ though it be burnt down, yet he is liable for the whole rent.” Lord R., 1477; Davis’ Adm’r v. Smith & Bradley, 15 Mo. 469. But it is conceded that, in the case of a lease of furnished rooms, upon their provinguntenantable, the lessee might abandon them. Davis’ Adm’r v. Smith & Bradley, supra. The reason is that in the first contract the implication is that it is the land which the lessee takes, and of which he must bear the burdens as well as the benefits, while in the second, he takes only the rooms, and when they are untenantable, possesses nothing which is of any value to him. 1 Wharton on Contracts, sect. 318.

If one undertakes to deliver a certain quantity of potatoes a failure of crops will not excuse a failure to comply with the contract; but a contract to deliver “a certain quantity out of a specific crop of potatoes is pro tanto avoided by a failure of the crop, so that the specified quantity is not produced.” 1 Wharton on Cont., sects. 314 and 315.

The reason is that in the first case the contract was unconditional, while in the second “there was an implied term that each party should be free if the crop perished.”

If one contract to build a house on the land of another, and the house is, before its completion, destroyed by fire, without his fault, he is not thereby discharged' from his obligation to fulfill his contract. School Dis*220trict v. Dancley, 25 Conn. 530; Adams v. Nichols, 19 Pick. 275.

JBut in a case where A agreed with B to give him the use of a music hall on specified days, for the purpose of holding concerts, and before the time arrived the building was accidentally, burned, it was held, that both parties were discharged from the contract. It was said by the court: “The principle seems to us to be, that in contracts in which the performance depends upon the continued existence of a given person or thing, a condition is implied that the impossibility of performance, arising from the perishing of the person or thing, shall ■excuse the performance.” And the reason given for the ruléis “Because from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the person or thing.” Taylor v. Caldwell, 113 E. C. R. 824; Dexter v. Norton et al., 47 N. Y. 65; Wharton on Contracts, sect. 300, and notes.

The principle that a condition will be implied in the contract itself in order to carry out the evident intention of the parties has been applied in numerous cases, where the contract was based upon the continued existence of a given person or thing. The principle has been applied where a painter made a contract to paint a picture, or an author to compose a work, or an apprentice to serve his master a specified number of years; and the principle seems to apply to all contracts where the party contracting to render the service must do so in person, and would not, under the contract, be permitted to do so by a substitute. Dexter v. Norton et al., supra; Wharton on Contracts, sect. 323. The principle has been applied in the sale of a specified horse (Benj. on Sales, 424); in a contract by an actor to play for the manager of a theater (Spalding v. Rosa et al., 71 N. Y. 41); and in a contract to carry specified goods in a named vessel. ■ Wharton on Cont., sect. 322.

The principle seems recognized by all the courts of this country and England which have discussed the sub*221ject, and. denied by none. In the German law there is the same rule, the rule being “the clause rebus sic stantibus is to be implied in cases where by either the nature of the contract or its express terms the contract would be inoperative without such assumption.” Wharton Contracts, sect. 315, note 2. Which is in substance the same as the statement of the principle made by Ellsworth, J., that “I should rather say, because it is implied that the thing shall be prolonged or life shall exist, or else the contract, of course, cannot be broken.” School District v. Dancley, 25 Conn. 537. And the rule is a rule of the civil law. Dexter v. Norton et al., supra; Pothier on Contracts and Sale, art. 4, sect. 1, p. 31.

It would seem to follow from the authorities cited that, where one is employed to do any work in a particular building for a series of days, the burning of the building by inevitable accident would stop the employer’s liability for wages. No case, in which this special question has arisen, has been found in the reports of this country or England ; but,- in Wharton on Contracts (sect. 322), it is stated that Mommsen, a distinguished German law writer, after a review of all the authorities, has announced as a part of his conclusion, that “when a laborer is employed to work for a series of days in a particular building, the burning of the building stops the employer’s liability'for wages. In such case wages can only be recovered for the work actually performed.”

The plaintiff in the present case was employed to teach the school of the defendant school district, for the period of four months. That is to say, he was employed to teach, for such period, a school in the school house then owned by the defendant. The parties-must have contemplated the continued existence of the school house for the said period of four months as the basis of the teaching during said time. The period of time during which the school was to be taught was named in the *222contract In obedience to the requirement' of the provisions of Revised Statutes, section 7046. Said section empowers the board of directors of a school district to employ teachers, and provides that the contract shall specify the number of months the school is to be taught. The contract must be construed in the light of those provisions of the statute. Considering that the plaintiff was employed to teach in a certain building, that the period during which he was to teach was stated in obedience to the requirements of the statute, we are-satisfied that in the contract the condition, if the school house should exist for such period of time, should be implied. If the school house had burned before the beginning of the school term, the burning of the school house would have stopped the defendant’s liability under the contract. The burning of the school hou'se during the school term stopped the defendant’s liability pro tanto.

It is true that the duty to keep the school house in good condition and repair during the school term rested upon the defendant’s board of directors, but such duty was Imposed, not by the contract, but by Revised Statutes, section 7044. And the rule is, “that where the performance of a duty or charge created by law is prevented by inevitable accident without the fault of the •party he will be excused.” Dexter v. Norton et al., supra; Davis' Adm'r v. Smith & Bradley, supra. The distinction is between a duty created by law and one created by contract. For this additional reason we-do not think that the contract can be construed to mean, that the defendant insured the existence of the school house during the school term of four months.

The defendant was liable on the contract for the time actually taught by the defendant, and for that time only. As said before, the burning of the school house stopped the defendant’s liability.

*223III.

Could the plaintiff recover in this action for the one-half of a month taught, by him without first having filed with the clerk of the school district the monthly report for such time required by Revised Statutes, section 7079 ?

By said section it is provided that, “ It shall be the duty of every teacher to make out and file with the district clerk, at the expiration of each month, a report of the number of pupils in attendance during the month, distinguishing between male and female, the average attendance, and such other statistics as the directors may require * *

By section 7071 the payment of the school district’s indebtedness is provided for, on warrants ordered by the board of directors. Said section contains the following proviso: “provided, however, that no order for the payment of teachers’ wages shall be drawn in favor of any person not holding a certificate of qualification, signed by the county commissioner or state superintendent, or in favor of any teacher delinquent in his monthly or ■term reports.'1''

At the end of the month, for one-half of which he had taught, the plaintiff should have made out and filed with the clerk of the school district the monthly report required by section 7079. Until this had been •done, the board of directors of the school district had no power, under section 7071, to order the payment of the plaintiff’s salary or wages for such half month. The plaintiff could not lawfully recover judgment against-: the defendant on account of a claim which the statute' prohibited the defendant from paying. Until the plaintiff had made and filed said monthly report he could not recover in this action for the one-half of a month taught-by him.

This case was submitted upon an agreed statement of facts. Prom it, it appears that the plaintiff made no *224such monthly report for said half month; and it does not appear that the defendant made a tender in this case of the amount due for said half month. The plaintiff and defendant have both filed abstracts of the record; from neither does it appear that any tender was made, but from both it does appear that this case was submitted on the agreed statement of facts. Hence the circuit court must have been in error in declaring that it appeared froiii the evidence that the defendant had tendered judgment for the one-half month taught by plaintiff.

It thus appears that the court, on the agreed state-ment of facts which is to be treated as a special verdict, should have rendered judgment in favor of the defendant both as to the half month actually taught by the plaintiff and that part of the school term subsequent to the burning of the school house.

It follows that the judgment Is reversed, and statement dismissed.

Philips, P. J., concurs.

Dissenting Opinion

Ellison, J.,

Dissenting. — I am unable to concur in the foregoing opinion. The rule is “that when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” Harrison v. Railroad, 74 Mo. 364, 371; Fulkerson v. Eads, 19 Mo. App. 620. Not even an absolute impossibility will be a defence with failure to comply with the engagement. Hutchinson on Carriers,. sect. 317; Angelí on Carriers, sect. 294. Parties should look out for such contingencies-when they make their contracts. I cannot say, with my associates, that plaintiff contracted “to teach a school in the school house then owned by the defendant. No such provision is in the contract. That the parties may have-contemplated the school would be taught in the school house then owned by defendant is quite likely, but it was a mere matter of contemplation, or expectation, ancL*225not of contract. So in contracting with a carrier, the parties may contemplate the freight will pass over a certain bridge, indeed without the bridge it may be impossible to move it, yet if the bridge be destroyed by inevitable accident, it would not be contended the carrier would be discharged from liability. In Fulkerson v. Eads (supra), the contract was to break out a certain' piece of ground in the month of August; a drouth made-it impossible to do so. The parties, doubtless, contemplated the possibility of the performance, yet this court: held defendant liable for damage. If the law was that' a school could only be. taught in the school house in existence at the time of the contract, then the assumption of the majority of the court that the contract was limited by an implied condition that the school house should remain undestroyed would be correct. For the contract would be with reference to the law. But if such is not the law, then such is not the condition. In many parts of the state, especially in villages, the school house is not large enough to accommodate the pupils and additional houses are rented. In such case what is the implied condition in the contract? It is quite common to rent a school house during the erection of a new one. It frequently happens that a new and more commodious school house will be erected by a school district in lieu of one which might well serve the purpose for a longer time. ' If the new one is burned down, leaving the old one intact, would it be contended that th'e directors could prevent the teacher recovering his wages because the building in which the parties contemplated the school would be taught was destroyed, although the other remained in every way suitable for the purpose ? If it were unlawful for directors .to use but the one building as before stated, if it were unlawful for them to rent, or to accept of another building without rent; if it were unlawful for them to rebuild immediately, as in some instances they might do, then we might properly *226assume the contract was with reference to the one building. As the law is, I can conceive of no special sanctity of any particular building in which a district school must be taught.

The citations in the majority opinion are not, in my judgment, applicable to this case. This case falls within the rule as quoted above. Dewey v. The Union School District, 43 Mich. 480. In that case the directors were 'compelled to close the school on account of the prevalence of small-pox. They refused to pay the teacher for the period not taught by him. He brought suit and recovered. The court says: “Beyond controversy the closing of the school was a wise and timely expedient; but the defence interposed cannot rest on that. It must appear that observance of the contract by the district was caused to be impossible by act of Hod. * * * The contract between the parties was positive and for lawful ■objects. On one side school buildings and pupils were to be provided, and on the other personal service as teacher. * * * Admitting that the circumstances justified the officers, and yet there is no rule of justice which will entitle the district to visit its own misfortune upon the plaintiff. * * * It was the misfortune of the district, and the district and not the plaintiff ought to bear it. The occasion which was presented to the district was not within the principle contended for. It was not one of absolute necessity, but of strong expediency. To let in the defence that the suspension precluded recovery the agreement must have provided for it, * * * and the contract cannot be regarded as tacitly subject to such condition.”

II. As to the third branch of the case, I agree that the teacher should have made his report for the half month taught by him. It would seem from plaintiff’s first instruction, that judgment was tendered or offered for the half month taught, yet no such offer appears in the record and we must take it that such was not the case, however the actual fact may have been.

*227As to the period not taught, I am of the opinion the monthly report was not a condition precedent to plaintiff’s recovery. There was nothing to report. Revised Statutes, section 7079, providing for such reports, says he must report the number of pupils in attendance during the month, distinguishing between male and female, and such other statistics as may be required. But the defendant has prevented this by its own act. The defendant has not furnished the subject matter for such report. Section 7071 provides that no order shall be given for any teacher’s wages who is “ delinquent in his monthly or term report.” Delinquency is a failure of duty, and implies voluntary conduct, but here the failure is by the fault of defendant and of which it should not be permitted to take advantage.