Spalding v. Rosa.

number of performances in their theater, the receipts to be divided in specified proportions. Wachtel felt sick and was unable to perform at all, and consequently the defendants did not furnish the troupe. The other facts are in the opinion. The complaint was dismissed; this was affirmed at General Term, and the plaintiffs appealed.

P. Cantine, for appellants. The sickness of Wachtel did not excuse the breach. Williams v. Vanderbilt, 28 N. Y. 218; White v. Mann, 26 Me. 361; Chapman v. Dalton, Plowden, 284; 2 Pars. on Cont. 185; Gray v. Murray, 3 Johns. Ch. 167; 1 MacQ. H. of L. Cas. 668; Gilpins v. Consequa, 1 Pet. C. C. 91; Youqua v. Nixon, id. 221; Paradine v. Jane, Aleyn, 26, 27; Story on Bail., § 36, and notes; Rowland v. Phalan, 1 Bosw. 43, 52, 57; Wolfe v. Howe, 20 N. Y. 197, 203; Clark v. Gilbert, 26 id. 279, 283, 284; Allen v. McKibbin, 5 Mich. 449; Patrick v. Putnam, 27 Vt. 759; Chase v. Barrett, 4 Paige, 161, 162; Blacksmith v. Fellows, 3 Seld. 416; Beebe v. Johnson, 19 Wend. 500; Harmony v. Bingham, 2 Kern. 99, 107, 115; Clark v. Glasgow As. Co., 1 MacQ. Scotch App. Cas. 668; West v. Steamer Uncle Sam, McAl. (Cal.) 505; Jemison v. McDaniel, 25 Miss. 83; Bunn v. Prather, 21 Ill. 217; M. D. Foundry v. Hovey, 21 Mass. 430, 431; Davis v. Smith, 15 Mo. 467; Hand v. Baynes, 4 Whart. 213; Dwight v. Williams, 4 McL. 581; The Harriman, 9 Wald. 172; 1 Pars. on Cont. 86, 94.

Erastus Cooke, for respondents.

ALLEN, J. The contract of the defendants was for four performances per week for two weeks, commencing on the 26th or 27th of February, 1872, by the "Wachtel Opera Troupe," at the plaintiffs' theater in St. Louis.

The "Wachtel Opera Troupe " was well known by its name as the company at the time of making the contract, performing in operas, under temporary engagements, at the principal theaters and opera houses in the larger cities of the United States, and composed of Wachtel as the leader and chief attraction, and from whom the company took its name, and those associated with him in different capacities, and taking the different parts in the operatic exhibitions for which they were engaged. The proof of the fact that there was a troupe or company known by that name, was

Spalding v. Rosa.

competent, as showing what particular company was in the minds of the contracting parties, and intended, by the terms used; and as there was no controversy upon this subject, and no ambiguity arising out of the extrinsic evidence, there was no question of fact for the jury.

Wachtel had acquired a reputation in this country as well as in Europe, as a tenor singer of superior excellence; and, in the language of the witnesses, had made a "decided hit" in his professional performances here. It was his name and capabilities that gave character to the company, and constituted its chief attraction to connoisseurs and lovers of music, filling the houses in which he appeared. His connection with the company was the inducement to the plaintiffs to enter into the contract, and give the troupe eighty per centum of the gross receipts of the houses, one-half of which went to Wachtel. Both the plaintiffs testified that it was Wachtel's popularity, and capabilities as a singer, upon which they relied to fill their theater and re-imburse themselves for their expenses and make a profit. The appearance of Wachtel in the operas was the principal thing contracted for, and the presence of the others of the company was but incidental to the employment and appearance of the "famous German tenor." The place of any other member of the company could have been supplied, but not so of Wachtel. His presence was of the essence of the contract, and his part in the performances could not be performed by a deputy or any substitute. The plaintiffs would not have been bound to accept, and would not have accepted the services of the troupe under the contract without Wachtel; it would not have been the "Wachtel Opera Troupe" contracted for without him. There is no dispute as to the facts. The only question is one of law, as to the effect of the sickness, and consequent inability of Wachtel to fulfill the engagement, upon the obligations of the defendants. So far as this question is concerned, it must be treated as if the contract was for the performance by Wachtel alone; as if he was the sole performer contracted for. This follows from the conceded fact that his presence was indispensable to the performance of the services agreed to be rendered by the entire company. In this view of the case, the legal question is very easy of solution, and can receive but one answer. The sickness and inability of Wachtel occurring without the fault of the defendants constitutes a valid excuse for the non-performance of the contract. Contracts of VOL. XXVII-2

Ward v. Atlantic and Pacific Telegraph Co.

this character, for the personal services, whether of the contracting party or of a third person, requiring skill, and which can only be performed by the particular individual named, are not, in their nature, of absolute obligation under all circumstances. Both parties must be supposed to contemplate the continuance of the ability of the person whose skilled services are the subject of the contract, as one of the conditions of the contract. Contracts for personal services are subject to this implied condition, that the person shall be able at the time appointed to perform them; and if he dies, or without fault on the part of the covenantor becomes disabled, the obligation to perform becomes extinguished. This is so well settled by authority that it is unnecessary to do more than refer to a few of the authorities directly in point. People v. Manning, 8 Cow. 297; Jones v. Judd, 4 N. Y. 411; Clark v. Gilbert, 26 id. 279; Wolfe v. Howes, 24 Barb. 174, 666; 20 N. Y. 197; Gray v. Murray, 3 Johns. Ch. 167; Robinson v. Davison, L. R., 6 Excheq. 269; Boast v. Firth, L. R., 4 Com. Pleas, 1. The same principle was applied in Dexter v. Norton, 47 N. Y. 62; 7 Am. Rep. 415, and for the same reasons, to a contract for the delivery of a quantity of specified cotton destroyed by fire, without the fault of the vendor, intermediate the time of making the executory contract of sale and the time for the delivery.

The judgment must be affirmed.

All concur, except FOLGER, J., absent.

Judgment affirmed.

WARD V. ATLANTIC AND PACIFIC TELEGRAPH Co.

(71 N. Y. 81.)

Telegraph company liability for injury by breaking of pole.

A telegraph company, having a right to place its line in a public street, is bound only to reasonable care; can be made responsible for an injury occur. ring from the breaking of one of its poles, only by proof of culpable negligence in the construction or maintenance of the line; and is not bound so to construct or maintain the line as to guard against storms of unusual severity, the occurrence of which could not reasonably be expected.

A

CTION for damages sustained by plaintiff's intestate by the fall of one of the defendant's telegraph poles in a street in

Ward v. Atlantic and Pacific Telegraph Co.

Brooklyn. Judgment on verdict was affirmed, and defendant ap

pealed.

Everett P. Wheeler, for appellant.

Wm. W. Goodrich, for respondent.

Defendant was bound to put up its poles so as to withstand such storms as are liable to occur in this climate. Miller v. St. Nav. Co., 10 N. Y. 431; Mayor, etc., v. Bailey, 2 Den. 433.

EARL, J. The defendant had the right to place its line in the street, and hence it can be made responsible for the accident only by proof of culpable negligence on its part, either in the construction of the line or its maintenance. If the post which broke and fell was originally not reasonably sufficient, or if it was permitted carelessly to become and be insufficient by decay, then responsibility attaches to the defendant for the accident.

The plaintiff claimed, on the trial, that there was some evidence that the post was originally insufficient; and, also, that it became so by decay; and the judge submitted to the jury the evidence upon both points.

The plaintiff testified that on Sunday, the day before the accident, it was very stormy; that there was rain, snow and sleet; that the wires were thick with frozen snow and sleet, and consequently hung down quite low; more than usual. Other witnesses for plaintiff testified to the same facts, and that the wires were covered thick with wet snow, and all broken by the weight thereof, but one. Heemstone, a witness for defendant, testified that the storm commenced Saturday night, and continued all Sunday; that it was a wet snow storm, and the snow clung to the wires; that he had been in the telegraph business for thirteen or fourteen years, and that this was the worst storm on wires he ever saw; that he never knew a snow storm to break down wires before; that the storm broke down the line almost entirely in New York and Brooklyn, and in a great many other places, and destroyed the means of communication for miles around; that it also broke down the wires of other companies, and with all the force the company could command, it took about a week to repair the line. Drowne, another witness for the defendant, testified that he had been a repairer of telegraph lines for sixteen years, and that he never saw a storm which compared with this in its effect upon the wires; that there

Ward v. Atlantic and Pacific Telegraph Co.

had been previous storms of sleet that had done as much injury to the wires as this; but not storms of snow; and that storms of such severity do not often happen. And another witness in the employ of the Western Union Telegraph Company testified that the storm was of unusual violence, and prostrated a great many poles. There was also evidence on the part of the defendant, that this line was properly constructed; that the wires and posts were of sufficient strength. Upon this evidence the judge instructed the jury that the defendant was bound to construct its line so as not to endanger the public safety; that it was not exempted from responsibility because this accident occurred in consequence of a violent storm; that it was its duty to put up its poles in such a manner as would stand the violence of such storms as are likely to occur in this climate; that he was not aware of any thing that occurred in reference to this storm that exempted it from responsibility on this account, and he also charged the jury in reference to the negligent maintenance of the line and posts. At the close of the charge, defendant's counsel requested him to charge, among other things, "that the defendant was not bound so to make or manage the line as to guard against storms of unusual severity, the occurrence of which could not be reasonably expected," and he declined the request and defendant's counsel excepted. In this, we think, the learned judge committed an error. The jury could have found from the evidence that this was a storm of unusual severity, which could not reasonably have been expected, and they could have found that this line, as originally constructed, was sufficient for such storms as could have been reasonably expected. Such findings would have exempted the defendant from any charge that its line was not properly constructed. Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42; Mayor, etc. v. Bailey, 2 Denio, 433. The defendant is not absolutely bound to make it a line safe to the public, to have its posts in the street so strong and secure that they cannot be blown down or broken by any storm. It does not insure the safety of travellers in the streets from injuries by its posts lawfully placed there. It is bound to use reasonable care in the construction and maintenance of its line, so that no traveller shall be injured by it, and the amount of care must be proportioned to the amount of danger and the liability to accident. The poles must be strong enough to withstand such violent storms as may be reasonably expected, but they are not required to be so strong that no