This court having decided in Fenton v. Clark, 11 Vt, that sickness will so far release a party to a contract to perform labor for an entire term from the performance of his contract, as to enable him to maintain an action to recover for part performance, it only seems to be a question of the character of the indisposition, as to severity and length of time. The sickness in the present case seems to have been sufficiently severe, as it wholly incapacitated the plaintiff from labor; and as it continued unabated for one week, and partially for two weeks, it would seem that the plaintiff was fully justified in regarding it as likely to continue as long, as it did, in fact.
We think it must be regarded as pretty clear that the defendant would be released from any obligation to wait two weeks for his hired man to recover, upon the uncertainty of his then recovering, before he employed other help. And if so, equally should the plaintiff be at liberty to leave for the time, andjhe would not be bound to return unless the defendant was bound to receive him, which he would not, under the circumstances of this case. He would then be entitled to recover what his part performance of his contract had benefited the defendant. This is now the settled rule in all entire contracts, where a recovery is allowed on the ground of apportionment, and a failure to perform strictly according to the terms of the contract. That was the basis of the recovery in the county court.
Judgment affirmed.