clearly within this rule. Lord v. Wheeler, 1 Gray, 282; Butterfield v. Byron, ubi supra, and cases therein cited.

Exceptions overruled.

Exception to general rule: the death or disability of the party contracting for personal service.

SPALDING et al. v. ROSA et al.

71 NEW YORK, 40.-1877.

Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, in favor of defendants, entered upon an order overruling exceptions and directing a judgment upon an order on trial dismissing plaintiffs' complaint.

This action was brought by plaintiffs, who were the owners and managers of the Olympic Theater, in St. Louis, to recover damages for an alleged breach of contract by defendants. By the contract, defendants agreed to furnish the "Wachtel Opera Troupe," to give four performances per week at plaintiffs' theater for two weeks, commencing the 26th or 27th February, 1872, plaintiffs to receive twenty per cent of the gross receipts, up to $1800 per week, and defendants the balance. Prior to the time specified in the contract, Wachtel, who was the chief singer and attraction, and who gave the name to the troupe, was taken sick, and at the time was unable to sing. Defendants in consequence did not furnish the troupe at the time specified.

The court at the close of the evidence directed a dismissal of the complaint, to which plaintiffs' counsel duly excepted. Exceptions were ordered to be heard at first instance at General Term.

ALLEN, J. The contract of the defendants was for four performances per week for two weeks, commencing on the 26th or 27th of February, 1872, by the "Wachtel Opera Troupe," at the plaintiffs' theater in St. Louis.

The "Wachtel Opera Troupe" was well known by its name as

8 In Hysell v. Sterling Coal & Mfg. Co. (W. Va.), 33 S. E. Rep. 95, the plaintiff contracted to put a tin roof on a house at $5 per square, and when the work was nearly completed the house was burned. It was held that plaintiff could recover in quantum meruit for the work done.

the company at the time of making the contract, performing in operas, under temporary engagements, at the principal theaters and opera-houses in the larger cities of the United States, and composed of Wachtel as the leader and chief attraction, and from whom the company took its name, and those associated with him in different capacities, and taking the different parts in the operatic exhibitions for which they were engaged. The proof of the fact that there was a troupe or company known by that name, was competent, as showing what particular company was in the minds of the contracting parties, and intended, by the terms used, and as there was no controversy upon this subject, and no ambiguity arising out of the extrinsic evidence, there was no question of fact for the jury. Wachtel had acquired a reputation in this country, as well as in Europe, as a tenor singer of superior excellence; and, in the language of the witnesses, had made a "decided hit" in his professional performances here. It was his name and capabilities that gave character to the company, and constituted its chief attraction to connoisseurs and lovers of music, filling the houses in which he appeared. His connection with the company was the inducement to the plaintiffs to enter into the contract, and give the troupe eighty per centum of the gross receipts of the houses, one-half of which went to Wachtel. Both the plaintiffs testified that it was Wachtel's popularity and capabilities as a singer upon which they relied to fill their theater and reimburse themselves for their expenses and make a profit. The appearance of Wachtel in the operas was the principal thing contracted for, and the presence of others of the company was but incidental to the employment and appearance of the "famous German tenor." The place of any other member of the company could have been supplied, but not so of Wachtel. His presence was of the essence of the contract, and his part in the performances could not be performed by a deputy or any substitute. The plaintiffs would not have been bound to accept, and would not have accepted the services of the troupe under the contract without Wachtel; it would not have been the "Wachtel Opera Troupe" contracted for without him.

There is no dispute as to the facts. The only question is one of law, as to the effect of the sickness, and consequent inability of Wachtel to fulfill the engagement, upon the obligations of the defendants. So far as this question is concerned, it must be treated as if the contract was for the performance by Wachtel alone; as if he was the sole performer contracted for. This follows from the

conceded fact that his presence was indispensable to the performance of the services agreed to be rendered by the entire company. In this view of the case, the legal question is very easy of solution, and can receive but one answer. The sickness and inability of Wachtel occurring without the fault of the defendants, constitutes a valid excuse for the non-performance of the contract. Contracts of this character, for the personal services, whether of the contracting party or of a third person, requiring skill, and which can only be performed by the particular individual named, are not, in their nature, of absolute obligation under all circumstances. Both parties must be supposed to contemplate the continuance of the ability of the person whose skilled services are the subject of the contract, as one of the conditions of the contract. Contracts for personal services are subject to this implied condition, that the person shall be able at the time appointed to perform them; and if he dies, or without fault on the part of the covenantor becomes disabled, the obligation to perform is extinguished. This is so well settled by authority that it is unnecessary to do more than refer to a few of the authorities directly in point. People v. Manning, 8 Cow. 297; Jones v. Judd, 4 N. Y. 411; Clark v. Gilbert, 26 N. Y. 279; Wolfe v. Howes, 24 Barb. 174, 666; 20 N. Y. 197; Gray v. Murray, 3 Johns. Ch. R. 167; Robinson v. Davison, L. R. 6. Excheq. 269; Boast v. Firth, Id. ; 4 Com. Pleas, 1. The same principle was applied in Dexter v. Norton (47 N. Y. 62) and for the same reasons, to a contract for the delivery of a quantity of specified cotton destroyed by fire, without the fault of the vendor, intermediate the time of making the executory contract of sale and the time for the delivery.

The judgment must be affirmed. All concur, except FOLGER, J., absent.

Judgment affirmed."

See also Lacy v. Getman, 119 N. Y. 109; Parker v. Macomber, 17 R. I. 674; Dickinson v. Calahan's Adm'rs, 19 Pa. St. 227.

NOTE. Wilful abandonment of contract prevents recovery for benefits already conferred by party in default, and renders him liable to respond in damages for the breach. Stark v. Parker, 2 Pick. 267; Lawrence v. Miller, 86 N. Y. 131. Contra: Britton v. Turner, 6 N. H. 481. But where full performance by plaintiff is impossible he may recover for benefits conferred. Wolfe v. Howes, 20 N. Y. 197; Green v. Gilbert, 21 Wis. 395; Manhattan Life Ins. Co. v. Buck, 93 U. S. 24. For recovery for benefits conferred upon abandonment of illegal contract, see Duval v. Wellman; Bernard v. Taylor.

ENGINEERING CASES: EXCERPTS FROM

DECISIONS.

IMPOSSIBILITY.

The prevention of performance by destruction of a building before completion, if the contract is entire, will prevent recovery for any part. L. R. 2 C. P. 651.

A contract to perform a notorious impossibility, known to the parties to be such at the time of making the contract, is void. 15 M. & W. 253.

In case of the loss of a vessel, the seaman is entitled to wages earned until time of such loss. Rev. St. U. S. § 4526.

An act of God usually excuses the performance of a contract. New Haven & Northampton Co. v. Quintard (1869), 6 Abb. Pr. N. S. 128.

The existence in the neighborhood of an epidemic, contagious disease likely to produce death, or circumstance likely to result in serious bodily harm excuses the performance of a contract. Libby v. Douglas (1900), 175 Mass. 128.

If full performance or acceptance be an express condition precedent to payment, the English courts deny a recovery where the subject matter is destroyed without the fault of either party to the contract. Appleby v. Myers (1867), L. R. 2 C. P. 651. If, however, the defendant has rendered services and the subject matter is accidentally destroyed without either party being in fault, the plaintiff cannot recover any payments he may have made. AngloEgyptian Navigation Co. v. Rennie (1875), L. R. 10 C. P. 271. That is to say, the loss is left where it falls.

A pro rata recovery has been permitted where the contract was not performed owing to the impossibility of detecting latent defects in the materials furnished. Gove & Co. (1890) v. Island City Mercantile Co., 19 Oregon, 363.

SECTION V.

BY OPERATION OF LAW.

The term "discharge by operation of law" means the manner in which a party to a contract acquires a release from his obligation without any act of his own but by the involuntary application of a rule of law.

(a) Merger.

1. Merger is the extinguishment of a security for a debt by the acceptance of a higher security; such as a bond in place of a note, or a deed in place of a simple contract. The acceptance of the higher security for the latter merges the latter in the former by operation of law.

(b) Alteration of a written instrument.

1. The rule applying to the alteration of a written instrument is that if a material alteration be made by a party to a deed or written contract without the consent of the other party, the instrument is discharged.1

(c) Bankruptcy.

1. When a bankrupt obtains from the court an order of discharge, he is released according to the statute from the debts and liabilities he has contracted since the passing of the statute."

CASES.

SECTION V.—DISCHARGE BY OPERATION OF LAW.

Merger.

CLIFTON v. JACKSON IRON CO.

74 MICHIGAN, 183.-1889.

Trespass. Defendant brings error.

CAMPBELL, J. Plaintiff sued defendant for trespass in cutting his timber in the winter of 1885-6. The defense set up was that the timber, though on the plaintiff's land, belonged to defendant. This claim was based on the fact that on September 22, 1877, a little more than eight years before the trespass, defendant made a contract to sell the land trespassed on to plaintiff, but with this reservation:

1 Wood v. Steele, 6 Wall. (U. S.) 80.

2 Sturgis v. Crowninshield, 4 Wheat. (U. S.) 122,