Jennings v. Lyons, 39 Wis. 553

Jennings v. Lyons

39 Wis. 553 | Wis. | 1876

Cole, J.

We have no doubt that the contract was for the personal services of the plaintiff and wife. The counsel for the defendant claimed that the work to be performed by the wife required no peculiar skill, and could have been performed by any ordinary hired girl competent to do housework. • Rut the relations which a domestic servant holds to the family, and the nature of the services to be performed, are such, that the temper, habits, intelligence and character of the person are more regarded than mere ability to do work. Considering the nature of the employment, if ever a contract can be said to call for personal services, it would seem to be in case of a'domestic who lives in the family of another. This view commends itself to the judgment and good sense of every one on a moment’s reflection, and need not be dwelt upon further.

The question is then presented, whether the sickness of the wife under the circumstances excused performance, if the plaintiff agreed that he and his wife should work one year? Upon that point the court below instructed the jury, that if they should find that the contract was as claimed by the defendant, that the plaintiff and wife were to .work for him a year for $300, yet if the plaintiff quit work because his wife was sick and unable to. do her part of the work, this would excuse full performance, and the plaintiff could recover what the services of himself and wife were worth for the time they actually worked. This charge was excepted to on the part of the defendant. The general rule doubtless is, that when a contract is entire, operating as a condition precedent, it is *557necessary for a party to show full performance on his part before he can maintain an action upon it. It would appear like mere affectation to attempt to refer to the elementary writers or adjudged cases where this principle is stated and affirmed. The authorities, however, recognize certain exceptions to the rule, as where performance has been rendered impossible by the act of God, by the act of the law, or by the act of the other party. 2 Chitty on Con., p. 1073; 2 Parsons on Con. (5th ed.), p. 672 et seq.; Story on Bailment, § 36. And where the act to he performed is one which the promisor alone is competent to do, the obligation is discharged if he is prevented by sickness or death from performing it. Wolfe v. Howes, 20 N. Y., 197; Ryan v. Dayton, 25 Conn., 188; Fuller v. Brown, 11 Met., 440; Knight v. Bean, 22 Maine, 531; Lakeman v. Pollard, 43 id., 463; Green v. Gilbert, 21 Wis., 395. In other words, sickness or death is generally regarded as an act of God in such a sense that it excuses the nonperformance, and a recovery is allowed upon a quantum meruit. In this case it is insisted that the sickness, or anticipated sickness, of the wife furnished no excuse for the failure to perform the contract, and that the instruction of the court that it did excuse was erroneous. The argument is based on these facts:

It appears that the plaintiff and wife commenced work for the defendant on the 17th of November, 1873, and quit about the 27th of the following March. The reason why the parties left their service was, as stated by the plaintiff himself, that his wife was in a family way — expecting soon to he confined, and as a consequence was unable to work. The plaintiff says that she was actually confined within four or six weeks after she left the defendant’s employment. It is argued that the plaintiff was fairly chargeable with a knowledge of the condition,of his wife; must he presumed to have known that she was nearly four months advanced in pregnancy; was bound to anticipate her sickness as an inevitable event; and *558should have provided for it in his contract. It is said that it was the plaintiff’s own fault under such circumstances to undertake and agree that he and his wife would work for a year, because he must have known that it would be impossible for him to perform his contract, and therefore the case does not come within the reason of the rule that sickness excuses. It is difficult to see any defect in this argument. It is incredible that the plaintiff was ignorant of the condition of hi& wife when he entered into the contract. He must have known that it would be impossible for her to work at the period of her confinement and for some time thereafter. There seems no reason why he should not be held liable for a breach of his contract, absolute in its terms; “ not, in fact, for not doing what cannot be done, but for undertaking and promising to do it.” For when performance becomes impossible by reason of contingencies which should have been foreseen and provided against in the contract, the promisor is held answerable. 2 Parsons on Con., 672-3. This principle applies to the facts of this case, if indeed the contract was as claimed by the defendant.

By the Oowrt. — The judgment of the circuit court is reversed, and a new trial ordered.