a person injured in stepping into a hole in a bridge, of which he had no knowledge. And in the case of Schneider v. Insurance Co., 24 Wis. 28, it appears that the person insured, in attempting to get upon a moving train, fell under the cars and was killed; but it was not claimed that his fall was the result of his doing what he intended to do."

BROKERS-RIGHT TO COMMISSION-LIABILITY OF PRINCIPAL.-In Delafield v. Smith, 78 N. W. Rep. 170, decided by the Supreme Court of Wisconsin, it was held that where a broker, who has an express agreement with his principal to sell goods of the latter on commission, contracts in his own name with third persons for the purchase of goods to be furnished by the principal, who approves the orders, but afterwards refuses to send the goods, in consequence of which the broker is obliged, at a loss, to fulfill the contracts himself, he cannot recover for such loss from the principal. It was further held that where a broker, having a contract for the sale of goods on commission, contracts in his own name for the sale to third persons of goods to be furnished by the principal, and the latter approves the orders but fails to deliver the goods, he is liable for commissions, the same as if he had furnished the goods. The court said in part: "The theory of the complaint is that, under the agreements mentioned, the plaintiffs, as agents of the defendant, sold, in their own names, the several cases of fruit therein mentioned, to be shipped by the defendant to the parties who had purchased the same of the plaintiffs, at Bay City, Mich., Charleston, W. Va., Parkersburg, W. Va., Muscatine, Iowa, Cleveland, Ohio, and Defiance, Ohio; and that, after such contracts of sale by the plaintiffs, to be so delivered by the defendant, the defendant, in violation of his agreements, refused to ship any of such goods, and the plaintiff thereby suffered loss. The stipulation mentioned is to the same effect. Undoubtedly, such refusals to ship the goods called for by such orders as the defendant had approved made the defendant liable to the plaintiffs for the amount of commissions they would have received had such goods been shipped. But the serious question recurs whether, under the agreements with the defendant, he was liable to the plaintiffs for losses on such contracts of sale which they had so made in their own name with such other parties? After careful consideration, we are constrained to hold that he was not liable for such losses. The agreements with the defendant did not authorize the plaintiffs to make contracts of sale in their own name. They were mere agents or brokers to sell on commission all goods shipped by the defendant into the territory named. Had the defendant accepted orders taken by the plaintiffs from such other parties, then, undoubtedly, the defendant would have been liable to such other parties for any breach of such contracts of sale. But the defendant had no contract relation with such other parties. On the

Id.

theory of the complaint, the defendant had no agreement with the plaintiffs, except as stated. The plaintiffs' agency was founded upon, and created by, the express agreement of the parties. Under such agreement, they were authorized to represent and act for the defendant in his business dealings with third persons in making such sales. Mechem, Ag. sec. 1. A broker is an agent of his employer, and he differs from a factor in that he does not ordinarily have the possession of the property which he is employed to sell, and his contracts are always made in the name of his employer. Id. secs. 13, 927; Edgerton v. Michels, 66 Wis. 130, 26 N. W. Rep. 748, and 28 N. W. Rep. 408, and cases their cited. On the other hand, a factor is intrusted with the possession of the goods, and may sell the same in his own name. Thus, it is held that, where a broker sells goods without disclosing the name of his principal, he acts beyond the scope of his authority, and the buyer cannot set off a debt due from the broker to him against the demand for the goods made by the principal. Baring v. Corrie, 2 Barn. & Ald. 137. The case is approved by more recent cases in England and this country. Drakeford v. Piercy, 7 Best & S. 515, 519; Pearson v. Scott, 9 Ch. Div. 198, 203; Cooke v. Eshelby, 12 App. Cas. 271, 275; Higgins v. Moore, 34 N. Y. 417, 419. In this last case it was held that authority given to a broker to sell property does not include authority to receive payment for the same, especially when the principal is known to the vendee.' There is nothing in the complaint, nor stipulation, nor the findings of the court, to indicate that the agreements of February 7, 1890, and May 28, 1890, were ever modified or changed. We must, therefore, hold that the plaintiffs cannot recover for any of the losses alleged in the complaint, except for the loss of commissions."

CONTRACTS-ILLEGALITY-SELLING RIGHT OF BIDDER AT JUDICIAL SALE.-It is held by the Supreme Court of Appeals of Virginia, in Camp v. Bruce, that illegality of a contract, though not pleaded or relied on as a defense at the trial court, will prevent its enforcement when suggested on appeal; and that the contract is illegal where, before confirmation of a judicial sale, one, instead of putting in an upset bid, purchases of the bidder his rights, giving him an advance on his bid. The following is from the opinion of the court: "The first question to be determined is whether that agreement is one which a court of equity will enforce. If it be an illegal contract, as claimed in argument, this suit cannot be maintained, although that defense was not raised by the pleadings, nor relied upon in the circuit court. The law refuses to enforce illegal contracts, as a rule, not out of regard for the party objecting, nor from any wish to protect his interests, but from reasons of public policy. Whenever, therefore, the illegality of the contract appears, whether alleged in the pleadings or made known for the first time in the evidence, it is fatal to the

case.

That defect cannot be gotten rid of either by failure to plead it or by agreeing to waive it in the most solemn manner. The law will not enforce contracts founded in its violation. Fry, Spec. Perf. § 309; 1 Story, Eq. Jur. § 261; Pom. Cont. (2d. Ed.), 286; Coppel v. Hall, 7 Wall. 542. "We have no statute declaring that contract like the one under consideration are unlawful; yet, under the principles of the common law, any contract that is made for the purpose of or whose necessary effect or tendency is to lessen competition and restrain bidding at judicial sales is held to be illegal, because opposed to public policy. The object in all such sales is to get the best price that can be fairly had for the property. The policy of the law, therefore, is to secure such sale from every kind of improper influence. To allow one bidder to pay off another, which is but a species of bribery, and thus prevent the prop. erty from bringing the best price, is condemned by the law, and the courts will not enforce contracts founded in such practices. Underwood v. McVeigh, 23 Gratt. 409, 428, 429; Cocks v. Izard, 7 Wall. 559, 562; Fry, Spec. Perf. § 308; Pom. Cont. § 283; Greenh. Pub. Pol. pp. 183-189. Tested by these principles, the agreement in question was clearly illegal.

"If the parties had succeeded in having the sale confirmed by the court, and the appellants substituted as purchasers, in lieu of the appellee, at his bid of $2,100, the agreement would have operated as a fraud upon the court and the parties whose lands were being sold for purposes of partition. It would have enabled the appellee to put $500 in his pocket, for which he furnished no valuable consideration; would have taken from the co-owners that much of their inheritance, and enabled the appellants to get the property by buying off the court's bidder, instead of putting in an upset bid, and taking the chances of having to pay a higher price for it at a resale. Neither in this case nor in the case in which the land was sold could such an agreement be enforced. If the commissioner who made the sale in the case of Ranstead against Ranstead had reported to the court that since the sale to him the appellee had sold his bid to the appellants, at a profit of $500, to be paid when the sale was confirmed (as he ought to have done, for he wrote the agreement, and knew all the facts, and the court, whose agent he was, had the right to know all that he knew about the appellants' dealings with their bidder that could affect the confirmation of the sale), instead of merely reporting that the appellee desired the conveyance for the land to be made to the appellants, the court would not have confirmed the sale at the appellee's bid of $2,100, although no upset bid had been put in.

"A court will never, where the facts are known to it, confirm a sale where the bidder has sold his bid at an advance, unless the advance paid or to be paid inures to the benefit of the parties to the suit. It does not allow bidders to trade behind its back, and speculate in that way on prop

erty which it is selling. 2 Daniell Ch. Prac. (5th Ed.), 1285; Hodder v. Ruffin, 1 Tam. 341.

"In order to prevent this, it became the practice of the English chancery courts, in the time of Lord Elden, it is said, to require the bidder who desired the court to substitute another in his stead to file an affidavit that there was 'no underhand bargain between them.' Ridgy v. Macnamara, 6 Ves. 515; Vale v. Davenport, Id. 615; Holroyd v. Wyatt, 9 Jur. 1072, 2 Colly. 327.

"The rule of the English chancery courts upon this subject is thus stated in 2 Daniell Ch, Prac. (5th Ed.), 1285: If, after becoming the bidder for an estate, the purchaser is desirous of being discharged from his contract, and of substituting another person in his stead, the court will, on motion, make an order to that effect. He must, however, support the motion by an affidavit that there is no underbargain, for the new purchaser may give the other a sum of money to stand in his place, and so deceive the court; and the rule appears to be that, if a purchaser resell behind the back of the court before the purchase is confirmed, the second purchaser is considered as a substituted purchaser, and must pay the additional price into court for the benefit of the estate. When the highest bidder at an auction induced the auctioneer to accept another person in his place, concealing the fact that he had sold his bargain at an advance, which he received, and absconded, the property was ordered to be resold, reserving all questions of liability of the original or subpurchaser.'

"The English rule of requiring affidavits where one purchaser is asked to be substituted for another is a wise one, and in this case the agreement sought to be enforced shows the necessity for some such safeguard in our practice. It might be well for our courts in all such cases, unless the parties consent to the substitution, to adopt the English practice. It is of the utmost consequence that judicial sales, and especially sales for partition, where infants are generally interested, should be protected from practices and influences which may prevent the lands from bringing the best price."

REMEDIES ON SICKNESS OR DISABILITY OF CONTRACTING PARTY.

When a contract becomes impossible of performance through the physical inability of one of the parties thereto, a variety of interesting questions are liable to be presented. When the party who thus becomes sick or disabled, or dies, is one in whose skill or personal qualities special reliance is placed, the extent and limit of his right of recovery, or recovery in his behalf, and the remedies available to either party, become, with various matters of procedure, subjects of no little importance upon

which existing sources of information throw little light. These subjects it is proposed to here discuss.

Recovery on Quantum Meruit. It is the general doctrine that if the performance of a contract involving special skill becomes impossible through sickness or similar disability, the party who has undertaken such performance may recover on a quantum meruit for what he did perform. This doctrine accords with the prevalent view that suit upon a quantum meruit is the proper remedy, where the law gives any remedy at all, for the part performance of an entire contract.2 Sometimes it is even indicated in regard to disability through sickness that the recovery can be on a quantum meruit only, and not on the contract. The theory of allowing recovery on a quantum meruit only is explained to be, that the implied condition of continued ability to perform having failed, the contract itself has come to an end. The one party being thus excused from performance, the other is excused also. Of course, this explanation requires the further suggestion that the contract,

1 This doctrine is supported, though without special reference to the nature of the contract, in Lakeman v. Pollard, 43 Me. 463, at p. 467, or 69 Am. Dec. 77, at p. 78. "It has been repeatedly held," says Bischoff, J., in Fisher v. Monroe, 16 Daly (N. Y.), 461 at p. 464, "that if a person under contract to render services of a peculiar kind, requiring the personal skill of the person who is to render the same, is prevented by reason of sickness from the performance thereof, his failure to perform will excuse him from such performance to such an extent that he will be enabled to recover upon a quantum meruit for the services actually rendered up to the time of his failure to continue the same by reason of such sickness." See in support of such recovery, Wolfe v. Howes, 20 N. Y. 197, at pp. 200 202, or 75 Am. Dec. 388; Fenton v. Clark, 11 Vt. 557, at p. 563; Leaver v. Morse, 20 Vt. 621, at p. 622, where it was also considered that an offer to pay was a waiver of any claim of forfeiture; Jennings v. Lyons, 39 Wis. 553, at p. 557, or 20 Am. Rep. 56, at p. 59. The right to the recovery of a reasonable compensation is also sustained by Fuller v. Brown, 11 Metc. (Mass.) 440, at p. 441; Ryan v. Dayton, 25 Conn. 188, at p. 194, or 65 Am. Dec. 560; at p. 563. See likewise the reference to this matter in Persons v. McKibben, 5 Ind. 261, at p. 263; and to more special phases of the doctrine in Dolan v. Ryan, 149 N. Y. 489, at pp. 494 95, or 44 N. E. Rep. 167, at pp. 168-69, and Parker v. Macomber, 17 R. I. 674, at pp. 676-69, or 16 Lawy. Rep. Ann. 858, at pp. 860-61.

2 See, as to this view, the case just cited, of Parker v. Macomber, 17 R. I. 674, at pp. 676-79, or 16 Lawy. Rep. Ann. 858, at pp. 860-61.

3 See remark of Downer, J., in Green v. Gilbert, 21 Wis. 395, at p. 400.

4 In Fisher v. Monroe, 16 Daly (N. Y.), 461, at p. 465. See also remarks in Leopold v. Salkey, 89 Ill. 412, at

p. 420.

being at an end, recovery can be had only on a new contract implied by law.

Recovery on Express Contract Sometimes Allowed. But in other instances recovery on the contract itself has been upheld by treating the covenants as mutual and independent, and permitting a reduction of damages for the period of incapacity from sickness. The justification assigned for this view, is that neither a reasonable remuneration upon the basis of a rescission of the contract, nor a proportionate compensation for the period of service under the contract, is as equitable a mode of ascertaining the amount due as the rule suggested. The ground for such a conclusion is that the rule favored enables the party who engaged the services to show, without resorting to a cross-action, any damages he has sustained by the failure to perform such services. It does not appear, however, that any such cross-action would be necessary where modern systems of counterclaim prevail.

Recovery Sometimes Deemed merely Measured by Express Contract.-Sometime the intermediate view is taken that while the recov

ery is on a quantum meruit, the measure of recovery is determined by the express contract.7

General Right of Recovery by Sick or Disabled Party Upheld.-Apart from this divergence of view as to the form of action in which recovery may be had, and the mode of measuring the recovery, it has sometimes been contended that there can be no recovery at all under such circumstences, at least in the case of hired laborers for a given period. This contention rests upon the theory that there can be no apportionment of the contract. But such a claim has been emphatically repudiated. "To hold in a case like this," cogently said one of the judges of the Vermont supreme court, "where the plaintiff has been discharged of his contract by the act of God, that there can be no apportionment, upon the

5 This view was taken in Greene v. Linton, 7 Port. (Ala.) 133, at pp. 139-40-42, or 31 Am. Dec. 707, at pp. 709-10-11. See also instances of recovery on express contract in Hargrave v. Conroy, 19 N. J. Eq. or 4 C. E. Green, 281; Caden v. Farwell, 98 Mass. 138, at p. 139. 6 See the case of Greene v. Linton, just cited.

7 See for direct or qualified support to this view in various of its phases, Wolfe v. Howes, 20 N. Y. 197, at p. 203, or 75 Am. Dec. 38; Coe v. Smith, 4 Ind. 79, at p. 82, or 58 Am. Dec. 618, at p. 621; Fuller v. Brown, 11 Met. (Mass.) 440, at p. 442; Ryan v. Dayton, 25 Conn. 188, at pp. 191-92, 194, or 65 Am. Dec. 560, at pp. 561564.

technical ground that the contract is entire, and its performance a condition precedent is, to my mind, leaving the substance and adhering to the shadow.''8

Defense of Like Character also Sustained. -On the other hand, the person whose services have been engaged can maintain a valid defense to an action brought against him to recover damages for alleged breach of the contract on his part."

Result and Qualification of these Conclusions.-1. Compromise Arrangement. It follows from the doctrine just stated in its two aspects that if an employee becomes disabled from further service during his employment, as through a mishap causing personal injury, the contract of employment is dissolved, and each party is released from further performance of such contract. Accordingly a promise of the former employer is unenforceable, as made without consideration, where it is to the effect that if the former employee will resign, he shall receive the stipulated salary.10 2. Special Stipulation.-It is further to be observed that the doctrine as stated is subject to the proviso that a different stipulation of the parties is naturally permissible and enforceable.11

Basis for the Current Doctrine on this Subject.

The doctrine which excuses performance of the contract on both sides in such cases, while allowing the recovery upon another implied contract of a reasonable compensation for the services, is upheld on grounds of public policy as avoiding the hardship which would otherwise ensue. It is urged that if such were not the law, the employer would have to pay both the disabled employee on his recovery, and the substitute meanwhile

8 Bennett, J., delivering the opinion in Fenton v. Clark, 11 Vt. 557, at pp. 563 64. These views were fol lowed though Redfield, J., dissented, in Ryan v. Dayton, 25 Conn. 188, at p. 193, or 65 Am. Dec. 560, at p. 563. For the effect of the difficulties under the older and more rigid rule, see Gray v. Murray, 3 Johns. Ch. (N. Y.) 167, at pp. 179-81.

9 Spalding v. Rosa, 71 N. Y. 40, at p. 44, or 27 Am. Rep. 7, at p. 10; Dickey v. Linscott, 20 Me. 453, at p. 455, or 37 Am. Dec. 66, at p. 67; Robinson v. Davison, Law R. 6 Ex. (Eng.) 269, at p. 274.

20 Prior v. Flagler, 34 N. Y. Supp. 152, or 13 Misc. Rep. 115. But compare Brighton v. Lake Shore & M. S. Ry. Co., 103 Mich. 420, at pp. 421-26.

11 See as to a stipulation fixing the salary of the employee for a year except for the portion of said time that "through illness or other cause" is not devoted to the employer's interest, Foster v. Henderson, 29 Oreg. 210, at pp. 217-19.

engaged; while the failure to forfeit the entire compensation of the employee puts him in no worse position than that of anybody who, from any cause, is prevented from continuing his earnings. 12 But it is to be noted that while performance on both sides is excused under such circumstances, so far as the particular contract is concerned, it does not follow that there is no liability for labor performed. The liability, however, according to the current view, is upon another implied contract, as it has just been termed in accordance with the more usual phraseology, though, strictly speaking, it is an "imposed" contract, as consisting of an obligation placed upon the parties by law. 13 More precisely, the obligation to pay for work done is not a contract at all, but is more accurately, under the now quite familiar phraseology of jurists, denominated a "quasi-contract," as being independent of any contract relations between the parties. A difficulty sometimes interposed to such right of recovery, however, where hired labor is to be paid at the end of the term of service, is based on the different doctrine, adverse to the apportionment of compensation, formerly largely maintained in regard to contracts to do a specific piece of work, as to build a house or a machine, for a particular sum. But in a leading and suggestive American case, it has been pertinently pointed out that a contract for services which cannot be performed by another stands on a different footing.15 It is

12 See the opinion by Bischoff, J., in Fisher v. Mon. roe, 16 Daly (N. Y.), 461, at p. 466. Also the full exposition of the reasons why the employer should not be required to take the employee back, in Johnson v. Walker, 155 Mass. 253, at p. 255, or 31 Am. St. Rep. 550, at p. 551.

13 See the explanation of the distinction by Field, J., in Milford v. Commonwealth, 144 Mass. 64, at p. 65. 14 In Ryan v. Dayton (1856), 25 Conn. 188, at pp. 19394, or 65 Am. Dec. 560, at pp. 562-63.

15 The cogent opinion of Storrs, J., in the case just cited, is in line, as it professes to be, with the views already quoted from Fenton v. Clark (1839), 11 Vt. 557, at pp. 563-64. See also the discussions of the subject, in various aspects, in Jennings v. Lyons (1876), 39 Wis. 553, at pp. 556-57, or 20 Am. Rep. 56, at p. 59; Coe v. Smith (1853), 4 Ind..79, at p. 80, or 58 Am. Dec. 618, at p. 619, with general note on apportionment of contract and recovery for part performance thereof, at p. 622; Parker v. Macomber (1892), 17 R. I. 674, at pp. 676-79, or 16 Lawy. Rep. Ann. 858, at pp. 860 61; and further, the explanation, as due to changes of statute as appearing in Dryer v. Lewis (1877), 57 Ala. 551, at p. 555, of the different views taken in Girham v. Dailey's Admx., 4 Ala. 336, at pp. 337-42, and adhered to in Hunter v. Waldron, 7 Ala. 753, at p. 757. As to contracts of hire for personal services for an indefinite

regarded 16 "as unreasonable to suppose that the parties to such an agreement" as the latter, "knowing that the person hired is liable to be interrupted in his labor by the act of God or inevitable necessity, intended or expected, although there should be no express stipulation on the subject, that he should, in such an event, not only lose his services, but as the case might be, be bound even to repay to his employer what he has received in part payment for them." It is considered to be "obvious that a rule which would subject him to these consequences would be not merely harsh, but unjust." Accordingly, courts of liberal tendency, whose views have prevailed, are, in regard to a contract of this kind, "induced to adopt as the most suitable and just general rule, in a case where the servant leaves the service before the end of the time for which he was hired, the one laid down by Chancellor Kent,17 that "unless he so leaves without reasonable cause, or is dismissed for such conduct as justifies the dismission, he does not forfeit a right to his wages for the period for which he has served."

May there be a Recoupment or Counterclaim of Damages?-Where recovery is allowed on the express contract, it has been seen's that it is deemed proper that there should be a reduction of damages for the period of incapacity from sickness. Where, however, recovery is not allowed directly upon the express contract, but is merely deemed measured thereby, or is otherwise upon a quantum meruit, the question may arise whether there can be a recoupment or counterclaim of damages alleged to have been suffered by the party for whom the services were agreed to be rendered. Upon this question, however, the courts are not in harmony. Some give an affirmative answer to the question,19 while others interpose an emphatically period, see an article by Daniel W. Crockett in 47 Cent. L. J. 426 (November 25, 1898).

16 In the opinion in Ryan v. Dayton, just cited. 172 Kent, Comm. 258. As to the rights and remedies of a discharged employee in general, at least under the New York doctrine, see O'Neill v. Traynor, 53 N. Y. Supp. 918, at pp. 919-20, or Misc. 24 Rep. 686. 18 In the statement of the law made in connection with the case of Green v. Linton, 7 Port. (Ala.) 133, at pp. 139-40-42, or 31 Am. Dec. 707, at pp. 709-10-11. As to what will amount to waiver of a counterclaim for time lost through sickness of the employee and other causes, see Dickinson v. Norwegian Plow Co. (Wis. 1898), 76 N. W. Rep. 1108, at p. 1109.

19 As was done, though not without dissent, in Clark v. Gilbert, 26 N. Y. 279, at p. 284, or 84 Am. Dec. 189,

negative answer.20 The former theory insists upon the justice and common sense of rule favored, upon the basis that though the servant's failure to perform his contract is his misfortune, and not his fault, yet the employer should no more lose than he should gain by it.21 Common sense is, however, not so safe a resource as it might seem, inasmuch as its teachings are so variously interpreted by different people; while the requirements of justice would be more readily acceded to if their application in this instance were more specifically explained. The latter view, taking an opposite stand, protests that such a doctrine unreasonably places a blameless party in the position of one who willfully and causelessly leaves the service of his employer. 22 This position may be partially predicated on the theory23 that the employer could not recover damages for the breach of the contract, and therefore cannot recoup them. But this theory of the case seems to be based on the assumption that the employee does not think of claiming compensation for his services, but is ready to abandon any right thereto, while the employer is the aggrieved party and seeks to hold his employee responsible for leaving him in the lurch, however unintentionally. A different case seems to be presented, however, when the employee affirmatively seeks to recover compensation for such services as he has performed. The employer may then more reasonably claim to off-set any damages he has suffered by reason of the failure to completely perform the agreed services.

Can there be Recovery for more than Value of Labor Actually Performed?—What, however, is the nature of the liability, if any, for labor hired for a definite period and not fully performed? Suppose, for instance, that at p. 191, following Patrick! v. Putnam, 27 Vt. 759, at p. 761, which relies on a remark of Bennett, J., in Fenton v. Clark, 11 Vt. 557, at p. 561. See also, in favor of a like view, Hillyard v. Crabtree, 11 Tex. 264, at p. 267; Seymour v. Cagger, 13 Hun, 29, at p. 32.

20 This is particularly seen in McClellan v. Harris, 7 S. Dak. 447, at p. 449. See also the declarations made in Caden v. Farwell, 98 Mass. 137, at p. 139. For a refusal to pass upon the matter, see Ryan v. Dayton, 25 Conn. 188, at p. 194, or 65 Am. Dec. 560, at p. 564.

21 This is substantially the attitude taken in the case before cited of Clark v. Gilbert, 26 N. Y. 279, at pp. 284-85, or 84 Am. Dec. 189, at pp. 191-92.

22 See the remarks of Fuller, J., in the before-cited case of McClellan v. Harris, 7 S. Dak. 447, at p. 449. 28 See the argument of counsel in the case just cited, 7 S. Dak. 448.