Johnson v. Walker

• Decision Date: 06 January 1892
• Citation: 155 Mass. 253,29 N.E. 522
• Parties: JOHNSON v. WALKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 253

29 N.E. 522

JOHNSON v. WALKER et al.

Supreme Judicial Court of Massachusetts, Plymouth.

January 6, 1892

COUNSEL

J.J. Dowd, for plaintiff.

H Kingman, for defendants.

OPINION

MORTON J.

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 the plaintiff. 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. 257; Spalding v. Rosa, 71 N.Y. 40; Robinson v. Davison, L.R. 6 Exch. 269; Boast v. Firth, L.R. 4 C.P. 1; Hubbard v. Belden, 27 Vt. 645; Ryan v. Dayton, 25 Conn. 188; Green v Gilbert, 21 Wis. 395. 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 defendants' 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 sick, his illness would have operated as an excuse, so that, notwithstanding the non-performance of his contract, he could have maintained an action against them for the amount due. Fuller v. Brown, 11 Metc. (Mass.) 440; Harrington v. Fall River, etc., Co., 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...