Sec 323

Subsequent impossibility is a defence to a suit for a personal duty when the contracting party becomes, without his own fault, incapable of performing his contract. He may become actually incapable of business, or, though he may not be thus incapable, he may not stand in a relation to the thing promised which enables him to dispose of it. Under the last head fall eases in which the party contracting has not the absolute control of the thing he undertakes to alienate. This, according to the Roman law, does not affect the validity of the obligadangerous illness.1 And the same principle is applicable to an engagement by an actor of a particular type to play for the manager of a theatre a particular line of parts.2 A contract, also, by R. with S., the proprietor of a theatre, to give a certain number of performances, ceases to be obligatory on the supervening incapacity of the principal performer and chief attraction in R.'s company.3 This rule is a fortiori applicable in cases where the promisor in a personal contract dies.4 Entire incapacity, also, of a party to receive services, - e. g. tuition, - coupled with the non-rendering of such services, - is a defence to a suit for the price of such services.6 And when the person thus exclusively qualified to perform a particular service fails from sickness or other incapacity in performing the service, the promisee can rescind the contract.6 "Where personal considerations are of the foundation of the contract, as in the cases of principal and agent and master and servant, the death of either party puts an end to the relation;"7 though it has been held by several courts that acts bona fide executed for the principal, before notice of his death, bind his estate as against bona fide third parties.8 A partnership, also, is dissolved by the death of one of its members, notwithstanding that it is by its terms to continue for a period as yet unexpired.9 In case of the sickness or death of a contractor, Subjective incapacity no defence to duty not exclusively personal.

1 See infra, sec 714; supra, sec 311; and see Farron v. Wilson, L. R. 4 C. P. 744; Knight v. Bean, 22 Me. 531; Hubbard v. Belden, 27 Vt. 645; Fuller v. Brown, 11 Met. 440; Ryan v. Dayton, tion. "Si quis promittat (mihi rem) cujus commercium non habet: ipsi nocere, non mihi."1 The damage is to fall on the party contracting to deliver a thing he was incapable of deliv ering. This principle has been applied to contracts of exchange,2 and of bailments generally.3 Subsequent loss of means to pay a debt, therefore, is no defence to a suit for the debt; subsequent sickness is no defence to a suit to do a particular thing in all cases where the thing could have been done by others than the promisor, and in which, therefore, it was not to be inferred from the contract that the agreement was only binding when capable of being performed by him personally.4 Hence, "when the thing or work can be done by another person, then all accidents are at the risk of the promisor."5 "Where a party contracts to do anything which does not absolutely require him to do it in person, sickness does not excuse: for he ought to have provided for it in the contract itself."6 It is otherwise, however, when the duty imposed is one that was to be exclusively performed by the promisor, and could only be performed by him.7 "Where, therefore, the services promised are such as can only be rendered by the person promising, his subsequent intervening incapacity, for which he is not responsible, is a defence to an action against him for breach of contract. This rule was applied in a suit against a pianist of peculiar excellence for failure to pertorm at a concert from which he was kept by a.

25 Conn. 188; Wolfe v. Howes, 20 N. Y. 197; Alexander v. Smith, 4 Dev. 364; Green v. Gilbert, 21 Wis. 395; and cases cited Benj. on Sales, 3d Am. ed. sec 571.

1 L. 34, D. de V. 0. (45-1). A similar ruling is contained in L. 49, sec 3, D. de legat. (2, 31).

2 L. 1, sec 1, D. rer. per. (19-4).

3 L. 9, pr. L. 15, sec 8, D. locati (19, 2). See to same effect, Wilkinson v. Lloyd, 7 Q. B. 27; and supra, sec 311; White v. Mann, 26 Me. 361; Leonard v. Dyer, 26 Conn. 172. That insolvency is not a defence, see Lewis v. Ins. Co., 61 Mo. 539; whether an assignee can recover on an executory contract dependent on action by assignor, see infra, sec 848.

4 Robinson v. Davison, L. R. 6 Ex. 269; Boast v. Firth, L. R. 4C.P.1; Dickey v. Linscott, 20 Me. 453; Knight v. Bean, 22 Me. 531.

5 Miller, J., Wheeler v. Ins. Co., 82 N. Y. 550; citing Wolfe v. Howes, 20 N. Y. 197; Clark v. Gilbert, 26 N. Y. 279; Spalding v. Rosa, 71 N. Y. 40; S. P. Alexander v. Smith, 4 Dev. 364.

6 Per cur., Smith v. Ins. Co., Sup. Ct. Penn. 1882; 13 Rep. 607; citing Scully v. Kirkpatrick, 79 Penn. St. 324.

7 Dickey v. Linscott, 20 Me. 453; see infra, sec 848.

1 Robinson v. Davison, L. R. 6 Exch. 269; and see Spalding v. Rosa, 71 N. Y. 401; Stubbs v. R. R., L. R. 2 Ex. 311; Howell v. Coupland, L. R. 9 Q. B. 469; see infra, sec 848.

2 De Rivafinoli v. Corsetti, 4 Paige, 264; see Lumley v. Wagner, 1 D. M. & Gr. 604; Hamblin v. Dinneford, 2 Edw. 529.

3 Spalding v. Rosa, 71 N. Y. 40.

4 Hall v. Wright, E. B. & E. 791.

5 Boast v. Firth, L. R. 4 C. P. 1; cited supra, sec 300; infra, sec 613; Simeon v. Watson, 46 L. J. C. P. 679; Stewart v. Loring, 5 Allen, 306. That the other party is discharged, see Jackson v. Ins. Co., L. R. 10 C. P. 144; infra, sec 613.

6 Leake, 2d ed. 705; Poussard v.

Spiers, L. R. 1 Q. B. D. 410; Knight v. Bean, 22 Me. 531; infra, sec 919.

7 Farrow v. Wilson, L. R. 4 C. P. 744; Blades v. Free, 9 B. & C. 167; Campanari v. Woodburn, 15 C. B. 400; Clarke v. Courtney, 5 Peters, 319; Gale v. Tappan, 12 N. H. 145; Marlett v. Salkman, 3 Allen, 287; Saltmarsh v. Smith, 32 Ala. 404; Ferris v. Irving, 28 Cal. 645.

8 Cassiday v. M'Kenzie, 4 W. & S. 282; Carriger v. Whittington, 26 Mo. 311; Ish v. Crane, 8 Oh. St. 520; 13 Oh. St. 576; see Wh. on Ag. sec 103-1.