Green v. Gilbert

Downer, J.

Errors are assigned in granting and -refusing instructions to the jury. If the contract between the parties was, that the plaintiffs should sink the well till they got water, or have no pay; and if it was so understood when, in December, 1862, after Sheldon had gone to the war, the defendant consented that Green should go on and complete the job; thenitis obvious the plaintiff ought not to have recovered, unless the *400 jury found that the contract was for the personal services of Green in drilling the well, and he was by sickness prevented from performing the work from the time he stopped, about the' first of January, 1863, until he offered to go on and complete the job, when the defendant refused to permit him to do it. Sickness is sufficient to excuse delay, or even non-performance of contracts for personal services, and is regarded as the act of God. See Wolfe v. Howes, 20 N.Y., 197, and authorities there cited. But in such cases the recovery is not for the contract price, but on a quantum meruit It was urged by the appellant’s counsel, that the drilling of the well was not a contract requiring skill, and that the plaintiffs might have procured another person to do the work. We think, as there was some conflict in the evidence as to the terms of the contract, which was verbal, it was proper to leave it to the jury to find whether the drilling required peculiar skill, and whether it was the intention of the defendant in December, 1862, to waive past delinquencies and the personal services of Sheldon ; also whether it was then the agreement of the parties that Oreen should give his personal services in the completion of the job. The instructions asked by the defendant, and refused, are not in harmony with these views, and were therefore rightly refused.

We have more difficulty with the instructions given. Some of them are somewhat obscure. Yet we think they may reasonably be so construed as to be in harmony with correct prin ciples of law. To reverse the judgment, we must be satisfied that the circuit court erred to the prejudice of the appellant. It is not clear to us that there was such error, and we therefore affirm the judgment.

By the Court. — Judgment affirmed.