though a promise in terms states that the promisor binds himself and his legal representatives, courts will not necessarily hold that the promise may be performed by the personal representatives unless this is clearly the intention.73 The words in question may be given some effect if understood as binding the representatives to answer for any default made by the promisor in his lifetime.

If liability has already arisen on a promise of personal service, the question is no longer one of the existence of an excuse for non-performance of a promise, but of the survival of actions.74

1941. Death of the employer.

Not only is the contract of an employee who binds himself for personal services discharged by physical inability, but it is generally said that death of the employer has the same effect.75 And where there are joint employers as in case of a partnership that the death of one excuses further performance.76 Undoubtedly in many contracts of employment the undertaking of the employer is personal in character. But the assumption frequently made in the cases that because the contract of the employee is personal, that of the employer necessarily must be, seems wholly unfounded. There is no necessity logical or legal for both the promises in a bilateral contract to be personal in character because one is. The promise of a painter to paint a landscape is discharged by his physical inability to paint, but the death or illness of one who has contracted to buy the painting will not free his estate from liability. Similarly in contracts of employment the nature of the employer's undertaking should be considered in each case. If the

73 Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117, 26 L. R. A. 416, 44 Am. St. Rep. 370; Browne v. Fairhall, 213 Mass. 290, 100 N. E. 556, 45 L. R. A. (N. S.) 349.

74 As to the survival of actions, see infra, § 1945.

75 Farrow v. Wilson, L. R. 4 C. P. 744; Campbell v. Faxon, 73 Kans. 675, 85 Pac. 760, 5 L. R. A. (N. S.) 1002; Harrison v. Conlan, 10 Allen, 85;

Babcock v. Goodrich, 3 How. Pr. (N. S.) 52; Arming v. Steinway, 35 N. Y. Misc. 220, 71 N. Y. S. 810; Lacy v. Getman, 119 N. Y. 109, 23 N. E. 452, 6 L. R. A. 728, 16 Am. St. Rep. 806; Casto v. Murray, 47 Or. 57, 81 Pac. 388, 883; Yerrington v. Greene, 7 R. I. 589, 84 Am. Dec. 578. See also Weithoff v. Murray, 76 Cal. 508, 18 Pac. 435.

76 See supra, § 316, n. 5.

character of the employment was such that the employer had free power to delegate the oversight of the work to another and no personal coöperation on his part is needed for the proper fulfilment of the contract, there seems no reason why his death should affect the continued obligation of the contract.”

§ 1942. Employer's election on employee's illness.

Frequently it cannot be known whether illness will be temporary or permanent; and until the illness has either in fact continued long enough to be material, or the employee's condition is such as to justify the reasonable belief that the incapacity will continue until the breach is material, the contract cannot be terminated, and the employee is entitled to the full agreed compensation.78 After the breach has become material, or the prospective incapacity is such as to justify the termination of the contract, the employer has an election to continue the contract or to terminate it under general principles heretofore considered.79 Until he manifests his election to terminate the contract, it seems that it continues in force and that even though the illness should afterwards prove of long duration, or should terminate fatally, the employer is bound to perform the contract on his part until he has manifested his election to terminate it, or the employee's death, or perhaps a condition of health rendering any future performance clearly impossible, has made it evident that the employer can derive no further benefit from the contract.80 The right of the employee to full

77 See the cases at the end of n. 5, supra, 316, where one of several partners died; also Dumont v. Heighton, 14 Ariz. 25, 123 Pac. 306, 39 L. R. A. (N. S.) 1187; Toland v. Stevenson, 59 Ind. 485; Drummond v. Crane, 159 Mass. 577, 35 N. E. 90, 23 L. R. A. 707, 38 Am. St. Rep. 460; Hill v. Robeson, 2 Smedes & M. 541; Chamberlain v. Dunlop, 126 N. Y. 45, 26 N. E. 966, 22 Am. St. Rep. 807; Pugh v. Baker, 127 N. C. 2, 37 S. E. 82.

In Sands v. Potter, 165 Ill. 397, 46 N. E. 282, 56 Am. St. 253, the insanity of an employer was held no excuse for his non-performance of the contract.

The Louisiana Civil Code, Art. 2007, provides that "all contracts for the hire of labor, skill, or industry, without any distinction, whether they can be as well performed by any other as by the obligor, unless there be some special agreement to the contrary, are considered as personal on the part of the obligor, but heritable on the part of the obligee.' See Tete v. Lanaux, 45 La. Ann. 1343.

78 Kv. Raschen, 38 L. T. (N. S.) 38; Dartmouth Ferry Commission ". Marks, 34 Can. S. Ct. 366, 374. 79 See supra, §§ 838, 875.

80 Miller v. Gidiere, 36 La. Ann. 201.

compensation during a period of illness would not be admitted everywhere in the United States. On principles of recoupment, or without much discussion of principle some, perhaps many, courts would hold suitable deduction must be made.81

It was held by a divided court in the English Exchequer Chamber, 82 that the fact that a man under contract to marry cannot do so without danger to his life is no excuse for breach of his promise, because though in bad health he might give the woman "the benefit of social position." The case has been justly criticised and is opposed to American authority.83

right to refuse to perform a contract to marry because of serious ill health of the other party depends on another principle previously considered,84 but is equally well settled.85 Whether the physical condition existed and was known to both parties at the time of the engagement introduces a further question-one of public policy. So far as the principles of contract are concerned one who knows at the time of the engagement of the defective physical condition of himself or of the one to whom he engages himself cannot subsequently make a continuance of the same condition ground of objection if such continuance was reasonably foreseeable, and the same is true if the disability supervenes after the engagement, and nevertheless both parties, with knowledge of the facts manifest an election to continue it.86 But the marriage of the parties may be so obviously opposed to public policy that the law will not enforce liability on the contract by giving damages to one who entered into the contract knowing the facts.86 If, however, the plaintiff was ignorant of disqualifying facts at the time of the engagement and the defendant was aware of them, there can be no doubt of the plaintiff's right to recover.87 Also where supervening ill health precluding marriage is due to the defendant's fault he will be liable in damages for breach of the contract.88 The condition of the health of either party may justify a temporary refusal to carry out the engagement without justifying its termination.89

84 Supra, § 838.

85

85 Vierling v. Binder, 113 Ia. 337, N. W. 621; Beans v. Denny, 141 Ia. 52, 117 N. W. 1091; Goddard v. Westcott, 82 Mich. 180, 46 N. W. 242; Gring v. Lerch, 112 Pa. 244, 3 Atl. 841, 56 Am. Rep. 314; Grover v. Zook, 44 Wash. 489, 87 Pac. 638, 7 L. R. A. (N. S.) 582, 120 Am. St. 1012; Travis v. Schnebly, 68 Wash. 1, 122 Pac. 316, 40 L. R. A. 585, Ann. Cas. 1913 E. 914. See also Atchison v. Baker, 2 Peake, N. P. Add. Cas. 103; Hall v. Wright, Ellis, B. & E. 746. Cf. Jefferson v. Paskell, [1915] 1 K. B. 57.

86 Cf. Gardner v. Arnett, 21 Ky. L. Rep. 1, 50 S. W. 840.

864 Gulick v. Gulick, 41 N. J. L. 13. 87 Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 81 Am. St. 302. And see infra, § 1631.

88 See Shackleford v. Hamilton, 93 Ky. 80, 19 S. W. 5, 15 L. R. A. 531, 40 Am. St. 166; Gardner v. Arnett, 21 Ky. L. Rep. 1, 50 S. W. 840; Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 81 Am. St. 302; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444; Sanders v. Coleman, 97 Va. 690, 34 S. E. 621, 47 L. R. A. 581.

89 Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 81 Am. St. Rep. 302.

The liability of sureties on a bail bond when unable to produce their principal in court because of his death or illness was contested very early and it was settled, and is still law that the death of the principal excuses the sureties for their failure to produce him in court; 90 and such illness of the principal as renders his appearance unreasonable is likewise an excuse.91 If, by authority of the local law, the principal is arrested and confined,92 or surrendered on requisition by another State 93 the result is the same,-the sureties are discharged; but confinement in another State is generally held no excuse.94