(B) Where perform ance de pends on life or health of a person. Implied that the person shall re contract is not to be treated as having become impossible of performance if by any reasonable construction it is still capable in substance of being performed (a): but on the other hand special exceptions are not to be laid hold of to keep it in force contrary to the real intention. Thus where the contract is to be performed " with all possible despatch,” saving certain impediments, the party for whose benefit the saving is introduced cannot force the other to accept performance after a delay unreasonable in itself, though due to an excepted cause, if the manifest general intention of the parties is that the contract shall be performed within a reasonable time, if at all. The saving clause will protect him from liability to an action for the delay, but that is all the other party cannot treat the contract as broken for the purpose of recovering damages, but he is not prevented from treating it as dissolved (b). B. Where the contract is for personal services of which the performance depends on the life or health of the party promising them. "All contracts for personal services which can be performed only during the lifetime of the party contracting are subject to the implied condition that condition he shall be alive to perform them; and should he die, his executor is not liable to an action for the breach of contract occasioned by his death" (c). Conversely, if the master alive and dies during the service, the servant is thereby discharged, and cannot treat the contract as in force against the master's personal representatives (d). The passage now cited goes on to suggest the extension of this principle to the case of the party becoming, without his own default, incapable of fulfilling the contract in his lifetime: "A contract by an author to write a book, or by a painter to main well enough for the purposes of the contract. (a) The Teutonia, L. R. 4 P. C. 171, 182. Cp. Jones v. Holm, L. R. 2 Ex. 335. (b) Jackson v. Union Marine Insurance Co. in Ex. Ch. L. R. 10 C. P. 125, 144 sqq. (c) Pollock, C. B. in Hall v. Wright, E. B. & E. at p. 793, 29 L. J. Q. B. at p. 51. (d) Farrow v. Wilson, L. R. 4 C. P. 744. Firth. paint a picture within a reasonable time, would in my judg ment be deemed subject to the condition that if the author became insane, or the painter paralytic, and so incapable of performing the contract by the act of God, he would not be liable personally in damages any more than his executors would be if he had been prevented by death." This view, which obviously commends itself in point of reason and convenience, is strongly confirmed by Taylor v. Caldwell (supra, p. 367), where indeed it was recognized as correct, and it has since been established by direct decisions. In Boast v. Firth (e) a master sued the father of Boast v. his apprentice on his covenant in the apprenticeship deed that the apprentice should serve him, the plaintiff, during all the term. The defence was that the apprentice was prevented from so doing by permanent illness arising after the making of the indenture. The Court held that "it must be taken to have been in the contemplation of the parties when they entered into this covenant that the prevention of performance by the act of God should be an excuse for non-performance" (f), and that the defence was a good one. In Robinson v. Davison (g) the defendant's Robinson wife, an eminent pianoforte player, was engaged to play at a concert. When the time came she was disabled by illness. The giver of the entertainment sued for the loss he had incurred by putting off the concert, and had a verdict for a small sum under a direction to the effect that the performer's illness was an excuse, but that she was bound to give the plaintiff notice of it within a reasonable time. The sum recovered represented the excess of the plaintiff's expenses about giving notice of the postponement to the public and to persons who had taken tickets beyond what he would have had to pay if notice had been sent him by telegraph instead of by letter. The Court of Exchequer upheld the direction on the main point. The reason was thus shortly put by Bramwell, B. "This is a (e) L. R. 4 C. P. 1. p. 7. (9) L. R. 6 Ex. 269. v. Davi son. The contract becomes void, not only voidable at option of party disabled. Semble, notice should be given to the other party. Hall v. contract to perform a service which no deputy could perform, and which in case of death could not be performed by the executors of the deceased: and I am of opinion that by virtue of the terms of the original bargain incapacity either of body or mind in the performer, without default on his or her part, is an excuse for non-performance" (). The same judge also observed, in effect, that the contract becomes, not voidable at the option of the party disabled from performance, but wholly void. Here the player could not have insisted "on performing her engagement, however ineffectually that might have been," when she was really unfit to perform it. The other party's right to rescind has since been established by a direct decision (i). No positive opinion was expressed on the other point as to the duty of giving notice. But it may be taken as correct that it is the duty of the party disabled to give the earliest notice that is reasonably practicable. Probably notice reasonable in itself could not be required, for the disabling accident may be sudden and at the last moment, and the duty must be limited to cases where notice can be of some use (k). It further appears from the case that the effect of an omission of this duty is that the contract remains in force for the purpose only of recovering such damage as is directly referable to the omission. The decision also shows, if express authority be required for it, that it matters not whether the disability be permanent or temporary, but only whether it is such as to prevent the fulfilment of the particular contract. In the earlier and very peculiar case of Hall v. Wright (1) the question, after some critical discussion of the pleadings, which it is needless to follow, came to this: "Is it a term in an ordinary agreement to marry, that if a man from to marry bodily disease cannot marry without danger to his life, and (h) L. R. 6 Ex. at p. 277. (i) Poussard v. Spiers & Pond, 1 Q. B. D. 410. (k) Cp. the doctrine as to giving notice of abandonment to under writers, Rankin v. Potter, L. R. 6 H. L. 83, 121, 157. (1) E. B. & E. 746, 29 L. J. Q. B. 43. excuse. is unfit for marriage from the cause mentioned at the time illness appointed, he shall be excused marrying then ?" (m) or in for marunfitting other words: "Is the continuance of health, that is, of such riage no a state of health as makes it not improper to marry," an implied condition of the contract? (n). The Court of Exchequer Chamber decided by four to three that it is not, the Court of Queen's Bench having been equally divided. The majority of the judges relied upon two reasons: that if the man could not marry without danger to his life, that did not show the performance of the contract to be impossible, but at most, highly imprudent; and that at any rate the contract could be so far performed as to give the woman the status and social position of a wife. It was not disputed that the contract was voidable at her option. "The man, though he may be in a bad state of health, may nevertheless perform his contract to marry the woman, and so give her the benefit of social position so far as in his power, though he may be unable to fulfil all the obligations of the marriage state; and it rests with the woman to say whether she will enforce or renounce the contract" (o). As to the first of these reasons, the question is not whether there is or not an absolute impossibility, but what is the true meaning of the contract; and in this case the contract is of such a kind that one might expect the conditions and exceptions implied in strictly personal contracts to be extended rather than excluded (p). As to the second reason, it cannot be maintained, except against the common understanding of mankind and the general treatment of marriage by English law, that the acquisition of legal or social position by marriage is a principal or independent object of the contract. Unless it can be so con (m) Per Bramwell, B. 29 L. J. Q. B. 45. (n) Per Pollock, C. B. ib. 52. The case is thus explained and distinguished by Montague Smith, J. in Boast v. Firth, L. R. 4 C. P. 8. (p) It has long been settled that the contract to marry is so far personal that executors, in the absence of special damage to the personal estate, cannot sue upon it. Chamberlain v. Williamson, 2 M. & S. 408. Limita tion of the rule to contracts for actual services. sidered, the reason cannot stand with the principle affirmed in Geipel v. Smith (q), that when the main part of a contract has become impossible of performance by an excepted cause, it must be treated as having become impossible altogether. The decision itself can be reviewed only by a court of ultimate appeal; but it is so much against the tendency of the later cases that it is now of little or no authority beyond the point actually decided, which for the obvious reasons indicated in some of the judgments is not at all likely to recur (r). The rule now before us applies only to contracts for actual personal services. A contract of which the performance depends less directly on the promisor's health is not personal presumed to be conditional. If a man covenants to insure his life within a certain time, he is not discharged by his health becoming so bad before the end of that time as to make his life uninsurable (s). It has never been supposed that the current contracts of a manufacturing firm are affected in law by the managing partner being too ill to attend to business, though there are many kinds of business in which the proper execution of an order may depend on the supervision of a particular person. And in general terms it may be said that no contract which may be performed by an agent can be discharged by a cause of this kind. Rights already acquired under the contract remain. As we saw in the case of contracts falling directly within the rule in Taylor v. Caldwell, so in the case of contracts for personal services the dissolution of the contract by subsequent impossibility does not affect any specific right already acquired under it. Where there is an entire contract of this kind for work to be paid for by instalments at certain times, any instalments which (2) L. R. 7 Q. B. 404. (r) See Wharton on Contracts, § 324, and Allen v. Baker, 86 N. C. 91, there cited, where the Supreme Court of North Carolina expressly |