155 Mass. 253 | Mass. | 1892
If the contract was an absolute one, the plaintiff is entitled to recover. There were no qualifications annexed to it in terms. But we think, as matter of law, it must be deemed to have been a qualified and conditional contract. It related to the personal services of the plaintiff. These could be performed by no one except him. The work to which they related could be done by another; but his own services could be rendered by no one except himself. They could be rendered by him only so long as he was of sufficient health and capacity. We think, therefore, that it was implied that inability from sickness or disease to perform the services on which the contract depended would be a sufficient excuse for non-performance on his part and on that of the defendants. Yerrington v. Greene, 7 R. I. 589. Cuckson v. Stones, 1 El. & El. 248, 257. Spalding v. Rosa, 71 N. Y. 40. Robinson v. Davison, L. R. 6 Ex. 269. Boast v. Firth,
Whether a temporary illness of a few hours, or in some instances perhaps of a few days, would in all cases come within the implied condition, we need not consider. In the present case the plaintiff was sick about seven weeks, and during all that time, as the exceptions state, was incapacitated from work in the defendant’s shop. We think that, as matter of law, this constituted such an interruption of and failure to perform his contract on the part of the plaintiff, that the defendants were justified in terminating it, and employing another person in his place.
If the defendants had not paid the plaintiff all that was due him at the time when he was taken ill, his illness would have operated as an excuse, so that, notwithstanding the non-perform-once of his contract, he could have maintained an action against them for the amount due him. Fuller v. Brown, 11 Met. 440. Harrington v. Fall River Iron Works, 119 Mass. 82. But the fact that he was incapacitated by causes beyond his own control, or, as it is termed, by the act of God, did not deprive the defendants of their right to terminate the contract, or oblige them to keep his position for him till he recovered. The right of the defendants to terminate the contract did not depend on giving notice to the plaintiff, but on the fact that he had become unable to render the services on whose continuance the contract depended.
Without undertaking to say that in no case could there be a duty on one side or the other to give notice of an intention to dissolve the contract because of inability to perform it on account of illness, we think there was no such duty on the defendants in the present case.
Exceptions overruled.
