If the incapacity of the principal is only temporary illness, the excuse of the surety is similarly temporary.9 § 1945. Survival of actions. 95 Unless a contractual obligation is personal in character death of the obligor will not discharge it, though no right of action had accrued prior to the death,96 and though the obligation is a guaranty for which the obligor received no benefit, the consideration inuring to the principal debtor." The fact that the promise of a surviving party to a bilateral contract is personal in character will not discharge the promise of a deceased party which is not personal.98 Though as has been seen in previous sections, the death of a contractor whose promise is personal discharges the obligation of the promisor, yet if a right of action on a contract for personal services has once become vested, the fact that the broken promise is for personal services will presumably not generally prevent the survival of the right against the executor or administrator of the promisor if he dies, or in favor of the promisee's representatives if he dies; though if it appears that death or illness would have prevented complete performance from being rendered, had there been no wrongful breach, damages should be limited." But a right of action for breach of promise of marriage does not survive against the representatives of a deceased promisor,1 nor can the personal representative of a deceased promisee sue the surviving promisor for breach of a contract to marry occurring before the death of the decedent. A pos 95 Bonner v. Commonwealth, 27 Ky. L. Rep. 652, 85 S. W. 1196; Markham v. State, 33 Tex. Cr. App. 91, 25 S. W. 127; State v. Edwards, 4 Humph. 226. 98 Wills v. Murray, 4 Exch. 843; Smith v. Wilmington &c. Mfg. Co., 83 Ill. 498; Drummond v. Crane, 159 Mass. 577, 35 N. E. 90, 23 L. R. A. 707, 38 Am. St. Rep. 460; McKeown v. Harvey, 40 Mich. 226; Jacobson v. LeGrange, 3 Johns. 199; Gray v. Hawkins' Adm., 8 Ohio St. 449, 72 Am. Dec. 600. Lloyds v. Harper, 16 Ch. D. 29. See supra, § 1253. 98 See supra, § 1941. 99 See Beckham v. Drake, 2 H. L. C. 579; Stubbs v. Holywell Railroad, L. R. 2 Exch. 311; Shropshire v. Bush, 204 U. S. 186, 51 L. Ed. 436, 27 S. Ct. 178; Odell v. Wells, 171 N. Y. S. 345. 1 Hovey v. Page, 55 Me. 142; Chase v. Fitz, 132 Mass. 359; Wade v. Kalbfleisch, 58 N. Y. 282. 2 Chamberlain v. Williamson, 2 M. & S. 408; Finlay v. Chirney, 20 Q. B. D. sible exception to the non-survival of actions for breach of promise to marry exists where there can be shown some special property injury to the plaintiff within the contemplation of the parties.3 § 1946. Destruction of specific thing contracted to be sold, leased or bailed. It is now well settled that where the existence of a specific thing is necessary for the performance of a contract, the accidental destruction or non-existence of that thing excuses the promisor, unless he has assumed by his contract the risk of its existence. The most obvious application of the principle is where specific property, the subject-matter of a contract to sell or lease, is destroyed before performance. In such a case the seller or lessor is freed from liability. Where the destruction happens before the bargain, mistake as well as impossibility is involved and the matter has already been considered. But, though depending on impossibility alone, the result is the same when the destruction is subsequent to the bargain; and on 494; Quirk v. Thomas, [1916] 1 K. B. 516; Hovey v. Page, 55 Me. 142; Flint v. Gilpin, 29 W. Va. 740, 3 S. E. 33; Grubb's Adm. v. Sult, 32 Gratt. 203, 34 Am. St. Rep. 765; Weeks v. Mays, 87 Tenn. 442, 10 S. W. 771; Flint v. Gilpin, 29 W. Va. 740, 3 S. E. 33. Otherwise by Statute in North Carolina. Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444. v. 3 Such a qualification to the general rule denying the survival of the action was suggested in Chamberlain Williamson, 2 M. & S. 408, and Finlay v. Chirney, 20 Q. B. D. 494; Hovey v. Page, 55 Me. 142, and other cases. But see Quirk v. Thomas, [1916] 1 K. B. 516. Supra, §§ 1560-1564. 5 Taylor v. Caldwell, 3 B. & S. 826; Howell v. Coupland, 1 Q. B. D. 258; Stone v. Waite, 88 Ala. 599, 7 So. 117; Ontario Fruit Assoc. v. Cutting Packing Co., 134 Cal. 21, 66 Pac. 28, 53 L. R. A. 681, 86 Am. St. 231; J. S. 5 4 Potts Drug Co. v. Benedict, 156 Cal. 322, 104 Pac. 432, 25 L. R. A. (N. S.) 609; Martin Emerich Outfitting Co. v. Siegel, 237 Ill. 610, 86 N. E. 1104, 20 L. R. A. (N. S.) 1114; Losecco v. Gregory, 108 La. 648, 32 So. 985; Adams v. Foster, 5 Cush. 156; Piaggio v. Somerville (Miss.), 80 So. 342, 344; Berlee v. Jeffcott, 89 N. J. L. 34, 97 Atl. 789; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Curtiss v. Prinderville, 53 Barb. 186; Powell v. Dayton &c. R., 12 Oreg. 488, 8 Pac. 544; McMillan v. Fox, 90 Wis. 173, 62 N. W. 1052. Sec. 8 (1) of the Uniform Sales Act provides: Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided. In Bigler v. Hall, 54 N. Y. 167, the defendant agreed to sell and deliver certain logs then on the bank of a principles of failure of consideration, previously considered, a buyer of personalty is not liable if the destruction precedes the transfer of title or risk,7 and if he has paid the price in advance it may be recovered. So one who contracts to sell real estate is excused from liability if it is fortuitously destroyed.' The same principles would excuse one who had contracted to lease property which was destroyed before actually leased, and a lessee who had covenanted to return leased goods. 10 For the same reason a bailee is not liable for the loss, injury, or destruction of the bailed property without fault on his part,11 unless he expressly contracts, as he may, to assume the risk of such accidental loss or injury.12 stream. The plaintiff paid the price. Some of the logs were thereafter lost because of a freshet, without the seller's fault. The majority of the court held that even though title had passed at the time of the bargain, the absolute promise of the seller to deliver made him liable to restore the contract price of the lost logs. The decision seems wrong and the dissenting opinion of Reynolds, J., correct. The seller if not paid for these logs should be allowed to recover the price, if title had passed (see supra, § 799) and, a fortiori, having been paid should be allowed to keep the payment, his promise to deliver being excused by the destruction of the logs. Supra, § 838. 7 Calcutta Co. v. DeMattos, 32 L. J. Q. B. 322, 335; Tillson v. United States, 129 U. S. 101, 9 S. Ct. 255, 32 L. Ed. 636; Hays v. Pittsburgh Co., 33 Fed. 552; Peace River Phosphate Co. v. Grafflin, 58 Fed. 550; Jones v. Pearce, 25 Ark. 545; J. S. Potts Drug Co. v. Benedict, 156 Cal. 322, 104 Pac. 432, 25 L. R. A. (N. S.) 609; Crawford v. Smith, 7 Dana, 59; Brown v. Childs, 2 Duv. 314; Phillips v. Moor, 71 Me. 78, 80; Lingham v. Eggleston, 27 Mich. 324; Hahn v. Fredericks, 30 Mich. 223, 18 Am. Rep. 119; Wilkinson v. Holiday, 33 Mich. 386; Slade v. Lee, 94 Mich. 127, 53 N. W. 929; Drews v. Ann. River Logging Co., 53 As to his right to recover the price in spite of his own non-performance, see supra, §§ 928 et seq. 10 Chamberlen v. Trenouth, 23 U. C. C. P. 497. 11 Southcote's Case, 4 Co. 83 b; Kettle v. Bromsall, Willes, 118; Sun Printing &c. Assoc. v. Moore, 183 U. S. 642, 654, 22 S. Ct. 240, 245, 46 L. Ed. 366; Reeves v. The Constitution, Gilp. 579, Fed. Cas. No. 11,659; Mulvaney v. King Paint Mfg. Co., 256 Fed. 612, 167 C. C. A. 642; Francis v. Shrader, 67 Ill. 272; Watkins . Roberts, 28 Ind. 167; Field v. Brackett, 56 Me. 121; Buis v. Cook, 60 Mo. 391; Millon v. Salisbury, 13 Johns. 211; Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215; Harrington v. Snyder, 3 Barb. 380; Hyland v. Paul, 33 Barb. 241; Sawyer v. Wilkinson, 166 N. C. 497, 82 S. E. 840, L. R. A. 1915 B. 295. See also Philippine Ids. v. Bingham, 13 Philippine, 558, and supra, § 1056. The exceptional liability of carriers and innkeepers is elsewhere considered. 12 Sun Printing, etc., Assoc. v. Moore, What amounts to a promise to assume the risk has given rise to some difficulty. A mere promise to return the bailed property imposes no greater liability than the implied promise involved in the contract of bailment;13 and the same is generally held though the promise is to return in good condition or in as good condition as when received, 14 but under a contract to return or pay for the bailed property,15 or to be responsible for it, the bailee becomes liable. 16 So also if bailed property is used otherwise than in accordance with the contract of bailment, the bailee is generally liable for accidental injury.17 § 1947. Injury of goods contracted to be sold. If the property in question is accidentally injured the Uniform Sales Act doubtless expresses the law apart from statute (except perhaps in allowing the buyer to enforce partially a divisible contract) in the following provisions.18 Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault of the seller or the buyer, part of the goods perish or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character, the buyer may at his option treat the contract— 183 U. S. 642, 46 L. Ed. 366, 22 S. Ct. 240; Mulvaney v. King Paint Co., 256 Fed. 612, 167 C. C. A. 642; S. E. Olson Co. v. Brady, 76 Minn. 8, 78 N. W. 864; Thompson v. Thompson, 78 Minn. 379, 81 N. W. 204, 543; Commercial Elec. Supply Co. v. Missouri Commission Co., 166 Mo. App. 332, 148 S. W. 995; Armijo v. Abeytia, 5 N. Mex. 533, 25 Pac. 777; Alaska Coast Co. v. Alaska Barge Co., 79 Wash. 216, 140 Pac. 334, L. R. A. 1915 C. 423. 13 Lake Michigan, etc., Co. v. Crosby, 107 Fed. 723; Field v. Brackett, 56 Maine, 121; Sawyer v. Wilkinson, 166 N. C. 497, 82 S. E. 840, L. R. A. 1915 B. 295. Cf. Pope v. Farmers', etc., Mill Co., 130 Cal. 139, 62 Pac. 384, 53 L. R. A. 673, 80 Am. St. 87; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790. 14 See supra, § 932 n. 58; Mulvaney v. King Paint Mfg. Co., 256 Fed. 612, 167 C. C. A. 642 ("to be returned to you in same condition as received with the usual wear and tear"). 15 Drake v. White, 117 Mass. 10; Austin v. Miller, 74 N. C. 274; Grady v. Schweinler, 16 N. Dak. 452, 113 N. W. 1031, 14 L. R. A. (N. S.) 1089, 125 Am. St. Rep. 674. 16 National Cash Register Co. v. Caillias, 84 N. Y. S. 166. See also Rapid Safety Fire Extinguisher Co. v. Hay-Beddun Mfg. Co., 37 N. Y. Misc. 556, 75 N. Y. S. 1008, affd. 77 N. Y. App. D. 643, 79 N. Y. S. 1145. 17 Hale on Bailments, 186, L. R. A. 1915 B. 304 n. 18 Sec. 8 (2). (a.) As avoided, or (b.) As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer if the contract was divisible. The rights given the buyer involve an application of the general doctrine of election to the law of sales. Though the buyer may refuse to take any of the goods if some are destroyed or injured, he may take them if he wishes to do so. 19 He cannot, however, change his own liability in such a case from that provided for by the contract. He must pay the agreed price for what he receives, even though he is not receiving all that the contract required. The provision does not excuse one who has contracted to finish and deliver specific incomplete articles which are injured accidentally after the bargain, unless the injury is so great that they are substantially changed in character, 20 for performance is still possible. § 1948. Destruction of essential specific thing. Not only where a specific thing is itself to be sold or transferred, but wherever a contract requires for its performance the existence of a specific thing, the fortuitous destruction of that thing, or such impairment of it as makes it unavailable, excuses the promisor unless he has clearly assumed the risk of its continued existence. A contract to manufacture goods in a particular factory is discharged by the destruction of the factory; 21 a contract to do work on a specific building is discharged by the destruction of that building; 22 a contract to carry goods by a particular ship is discharged by the loss of the ship, 23 or by such an injury to it as prevents its use within the 19 Thus one who has contracted to sell his crop of hops cannot refuse to perform because the crop is of inferior quality. Livesley v. Johnston, 45 Oreg. 30, 76 Pac. 13, 946, 65 L. R. A. 783, 106 Am. St. 647. 20 Automatic Time Table Advertising Co. v. Automatic Time Table Co., 208 Mass. 252, 94 N. E. 462. 21 Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215. 22 See infra, § 1975. Cf. Field v. Haven, 26 Cal. App. 694, 173 Pac. 108. 23 Furness &c. Co. v. Randall, 124 Md. 101, 91 Atl. 797. |