security to the indebtedness to and for said Bank," and, after so refusing, added: "Rutherford was not liable as an indorser, though one in form." The defendants excepted generally, but did not except specifically to the addition, as found. After finding these facts, the trial court found as conclusions of law that the transaction was not prohibited by the National Banking Act, and, if it was, that the defendants could not take advantage of it in this action; that Rutherford was not liable to the Bank as indorser on said notes; and that the recovery of said judgment does not help the defendants, because the rule as to election of remedies does not apply; that the defendants were not liable for the stock given to the Goshen Bank on the 13th of January, 1887, because they were not then the sureties of said Rutherford, but that they were liable for the value of the other ten shares, delivered to the Chase Bank March 18, 1887, as that was after they had signed said bond. Rutherford died in March, 1888, and this action was commenced about two months afterwards. Messrs. A. S. & W. F. Cassedy, for appel lants: Under the Banking Act, Rutherford was a stockholder individually, and if the Bank had failed with the stock standing in his name he would have been liable to the creditors for an amount equal to the stock, and it would have been no defense to him to say that he held it for the Bank. Wheelock v. Kost, 77 Ill. 296; Magruder v. Colston, 44 Md. 349, 22 Am. Rep. 47: Hale v. Walker, 31 Iowa, 344, 7 Am. Rep. 137. The judgment recovered by the Bank against Rutherford forever fixed their position as to the notes. Dedham Bank v. Chickering, 4 Pick. 314; Brandt, Suretyship, p. 314. As to the strictness with which courts have construed bonds of this character, see Miller v. Stewart, 22 U. S. 9 Wheat. 680, 6 L. ed. 189: Boston Hat Mfry. Co. v. Messinger, 2 Pick. 223; People v. Pennock, 60 N. Y. 421; McCluskey v. Cromwell, 11 N. Y. 593. The transaction if as claimed by the Bank and found by the court was not in line of the regular duties of Rutherford as cashier, was out of the ordinary course of business, was not contemplated by the sureties and covered by the bond. Where one of two innocent parties must sustain a loss by the fraud of a third, such loss should fall upon the one, if either, whose act has enabled such fraud to be committed. the failure to comply with the law, even if it had been violated by the Bank. First Nat. Bank of Xenia v. Stewart, 107 U. S. 676, 27 L. ed. 592; National Bank of Genesee v. Whitney, 103 U. S. 99, 26 L. ed. 443; Fortier v. New Orleans Nat. Bank, 112 U. S. 439, 28 L. ed. 764; Union Gold Min. Co. v. Rocky Mountain Nat. Bank of Central City, 96 U. S. 640, 24 L. ed. 648; Wyman v. Citizens Nat. Bank of Faribault, 29 Fed. Rep. 734; Thompson v. St. Nicholas Nat. Bank, 113 N. Y. 325; Atlantic State Bank of Brooklyn v. Savery, 82 N. Y. 291. The contract of the defendants in their bond covered the acts of Rutherford in appropriating the stock. Barrington v. Bank of Washington, 14 Serg. & R. 405; Rochester City Bank v. Elwood, 21 N. Y. 88; Bostwick v. Van Voorhis, 91 N. Y. 353; Fourth Nat. Bank v. Spinney, 120 N. Y. 560; Belloni v. Freeborn, 63 N. Y. 383; Tompkins County Suprs. v. Bristol, 99 N. Y. 316; German American Bank v. Auth, 87 Pa. 419, 30 Am. Rep. 374. A party may prosecute as many remedies as he legally has, provided they are consistent This the plaintiff has done and concurrent. and no more. Emery v. Baltz, 22 Hun, 434; Stowell v. Chamberlain, 60 N. Y. 272; Borcen v. Mandeville, 95 N. Y. 237; Richards v. La Tourette, 119 N. Y. 54; Mills v. Parkhurst, 126 N. Y. 89. Vann, J., delivered the opinion of the court: The appellants claim that the transaction whereby the stock in question was transferred to Rutherford was in violation of the National Banking Act, which provides that no banking association "shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser of any such shares unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith.' U. S. Rev. Stat. § 5201. Assuming this to be true, the defendants cannot take advantage of it, because the Act "imposes no penalty, either upon the bank or borrower, if a loan upon such security be made." First Nat. Bank of Xenia v. Stewart, 107 U. S. 676, 27 L. ed. 592. The case cited was an action by the personal representatives of a borrower to recover from a national bank the value of certain shares of its capital stock, delivered to it as collateral at the time the loan was made, and, after default in payment of the note, sold by the bank, and applied on the debt. The court held that, if the prohibition of the statute could be urged against the validity of the transaction by anyone except the government, it could only be done before the contract was executed, and while the security was still subsisting in the hands of the bank. The decisions of the federal courts, construing the provision of said act which prohibits national banks from purchasing, holding, or conveying real estate, except for certain purposes, are analogous, because no penalty is provided for a violation of that section. U. S. Rev. Stat. § 5137. While it permits banks to purchase and hold such real estate "as shall be mortgaged to it in good faith by way of security for debts previously contracted," it prohibits the taking of a mortgage to secure future of his duty. The method adopted by him to effect his object was the transfer of the stock, not to the bank directly, as that was deemed inadvisable, but to himself, still acting as cashier for the benefit of the Bank. His indorsement, although a contract in form, was no contract in reality, unless made so by subsequent adjudication, but an artifice resorted to by him, while doing the business of the Bank, to deceive the official inspector for its protec tion. In no part of the transaction did he act for himself. The plaintiff, therefore, became the equitable owner of the stock, subject to the right of Mr. Terbell to redeem. When Ruther ford appropriated the stock to his own use, he deprived the Bank of that which belonged to it as the beneficial owner, and which was in his name, and the evidence thereof in his custody, by virtue of his official relation to the Bank. Although he may not have been guilty, under the circumstances, of strict conversion, he was guilty of misappropriating the property of the bank that had been intrusted to him as its cashier. This was in violation of his duty to the plaintiff and of the bond given by the defendants in his behalf. advances, but does not declare void any secur- | security for the Bank, which was in the line ity taken in violation of the Act. It has been repeatedly held that a mortgage, although taken to secure future advances, is a valid and enforceable security, notwithstanding the prohibition; and that only the federal government can take advantage of the violation of the statute. Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188; National Bank of St. Louis v. Whitney, 103 U. S. 99, 26 L. ed. 443; Fortier v. New Orleans Nat. Bank of Genesee, 112 U. S. 439, 28 L. ed. 764. In Wyman v. Citizens Nat. Bank of Faribault, 29 Fed. Rep. 734, it was held that a contract was not void if entered into by a national bank in violation of section 5200, which provides that "the total liabilities" to such a bank of any person, corporation, or firm shall not exceed one tenth of its capital stock actually paid in. The court said that "the decisions of the United States Supreme Court heretofore made warrant the conclusion that objections of the character presented to a breach of the Banking Law by a national bank can only be urged by the government." Similar decisions have been made by this court under somewhat similar circumstances. Thompson v. St. Nicholas Nat. Bank, 113 N. Y. 325, 334; Atlantic State Bank of Brooklyn v. Savery, 82 N. Y. 291. The principle on which these cases rest applies to the point under consideration, and requires us to hold that, even if the transaction with Rutherford was a mere evasion, and hence a violation of the provisions of the National Banking Act, the fact is not available as a defense to this action. The claim of the defendants that Rutherford held the stock to secure him for indorsing the note in question is not supported either by the findings or the evidence. The transaction was not with Rutherford as an individual, but as cashier of the bank. No evidence was given upon the subject except by Mr. Terbell, who testified: "When I go to the bank, and a man comes to the hole, and I tell him anything, I consider I am saying it to the bank. This conversation was over the counter in the Walden Bank. I so transferred it [the stock] to him individually to secure the bank. I did not make it directly to the Bank, because I supposed he was the Bank. He in dorsed these two notes. When I wanted him to pin the stock on these notes he said: 'When the government official comes here we can't take our own stock, and when he comes here and sees this stock pinned on these notes he will say: "You sell it right off and pay this" I will indorse them and will tell the board how it is.' The object was to get rid of the provision forbidding banks to take their own stock, and so I made the stock to him. He indorsed the paper to get around that. When Rutherford took this stock away he put it in an envelope, and I think told Mr. Scofield, then president of the Bank, if anything happened, that belonged to me. Thus it is clear that Rutherford, as cashier, took and held the stock in trust for the Bank, and indorsed the notes simply to deceive the government. He had no personal interest in the matter. All that he did was for the benefit of the Bank in the transaction of its business as its officer. His object was to get The defendants further claim that, even if Rutherford held the stock for the benefit of the Bank, and in his capacity as cashier, still by recovering judgment against him as indorser the plaintiff waived its right to sue him in tort and thereby deprived the defendants of a substantial right in case they should pay the bond. Although Rutherford, upon the facts herein as found by the special term, had a perfect defense to the action brought against him on the notes, still the judgment entered by default was an adjudication irrevocably establishing a contract of indorsement between him and the plaintiff. Lorillard v. Clyde, 122 N. Y. 41; Brown v. New York, 66 N. Y. 385; Newton v. Hook, 48 N. Y. 676; Gates v. Preston, 41 N. Y. 113. If this was a waiver by the bank of its right to sue him for misappropriating its property, it was also a waiver of its right to sue his sureties for the damages caused by such misappropriation. Pitts v. Congdon, 2 N. Y. 352; Chester v. Bank of Kingston, 16 N. Y. 336; Bank of Albion v. Burns, 46 N. Y. 170; Barnes v. Mott, 64 N. Y. 297; Ludlow v. Simond, 2 Cai. Cas. 1; Colemard v. Lamb, 15 Wend. 329: Stevens v. Cooper, 1 Johns. Ch. 425, 1 L. ed. 196; Harr. Subrogation, 17. It must be assumed on the facts found-that the plaintiff had two causes of action against Rutherford,-one on the note, and the other for misappropriating the security collateral to the note. If they were concurrent, the defendants cannot complain, as both could be prosecuted until one or the other was satisfied. If they were necessarily inconsistent, so that a judgment in one was a defense to the other, their liability on the bond ceased when the judgment was entered. We think that the remedies were concurrent, and not inconsistent. By indorsing the notes, not formally, but, as it must now be assumed, with the the intention of binding himself, Rutherford became liable to the plaintiff on his contract. Subsequently, by misappropriating the security that he had taken and was holding as cashier for the plaintiff's benefit, he violated his fiduciary relation to the Bank, and made himself liable! ucts are destroyed by fire is on the party alleging in tort. The latter cause of action accrued it. nearly five years after the former, to which it 2. The destruction by fire of milk and had only an accidental relation. His liability on the notes did not prevent him from wrongfully disposing of the Bank's collateral, and making himself liable on that account also. The casual circumstance that one payment would discharge both liabilities does not affect their independent origin and nature, because no fact essential to liability on the note was essential to liability for the misappropriation. There was a breach of contract, and also a breach of duty, in no manner dependent on such contract. Under no circumstances, no election of remedies was required, for both were available. Manning v. Keenan, 73 N. Y. 45, 51: Morgan v. Skidmore, 3 Abb. N. C. 92; Morgan v. Powers, 66 Barb. 42; White v. Whiting, 8 Daly, 23, 25; 6 Am. & Eng. Encyclop. Law, 248. It may be that the error of the learned trial judge in his legal conclusion that Rutherford was not liable as indorser affected his finding of the fact that Rutherford held the stock as cashier for the benefit of the Bank. We find no exception to the facts as found that is specific enough to raise this point. While said conclusion of law was wrong, it did not constitute reversible error, because the final result reached in the judgment order was right. We think that the judgment should be affirmed with costs All concur, except Brown, J., not voting. Thomas T. STEWART, Appt., v. Benjamin S. STONE, Respt. 1. The burden of proof of negligence of a bailee in whose factory milk and its prodNOTE.-Contracts; effect of intervening impossibility | to perform as a relief from the obligation. The distinction between a contract and a duty created by law, made in Paradine v. Jane, Aleyn, 26, in which the expulsion of a tenant by alien enemies was held not to relieve from his agreement, has been followed in a multitude of subsequent cases establishing the general doctrine that impossibility of performing an absolute promise will not relieve from the obligation. its products while in possession of a bailee who has contracted to manufacture and sell butter and cheese relieves him from his contract so far as the subject thereof is destroyed by the fire if it occurred without his fault. (October 6, 1891.) APPEAL by plaintiff from a judgment of the General Term of the Supreme Court, Fourth Department, affirming a judgment entered in the Oswego County Clerk's office upon the report of a referee in favor of defendant in an action brought to recover the value of a quantity of milk, butter and cheese, manufactured and in process of manufacture from milk furnished by plaintiff to defendant, for that purpose, at his cheese factory. Affirmed. Statement by Bradley, J.: The plaintiff and his assignors were patrons of the defendant's factory, where they and others delivered milk to be manufactured into cheese and butter, marketed, and the proceeds deposited by him for them respectively at a stipulated compensation. This was done by the defendant up to October 28, 1883, when the factory was destroyed by fire, and a quantity of milk, butter and cheese thereby lost. Several of the patrons suffering such loss assigned their asserted claims against the defendant to the plaintiff, who brought this action, and in his complaint alleged that the destruction and loss by the fire were occasioned by the negligence of the defendant or his agents and servants. The referee found that such negligence was not established, and directed judgment for the defendant. Mr. J. W. Shea, for appellant: A party who has entered into a contract to make and deliver a manufactured article, basis of the continued existence of a given person or thing, a condition is implied that if performance becomes impossible from the perishing of the person or thing, the performance shall be excused. Walker v. Tucker, 70 Ill. 527. If performance is rendered impossible by the destruction of the subject matter of a contract or by the death of the person upon whose life performance depends, and the like, the obligor will be discharged; but events against which the parties could have provided in their contract can never be set up as an excuse for nonperformance of the ob Where no express or implied provision as to the event of impossibility can be found in the terms or circumstances of an agreement, a supervening im-ligation. Union District Twp. v. Smith, 39 Iowa, possibility will not relieve the promisor from liability for failure to perform. Switzer v. Pinconning Mfg. Co. 59 Mich. 488. The real intention of the parties is the test in determining the liability for failure to perform a contract which it has become impossible to perform. Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 388. If an event such as cannot reasonably be supposed to have been in contemplation of the parties when the contract was made makes performance impossible, the parties will not be bound by general words, which, though large enough to include it, were not used with reference to the possibility of the particular contingency. Baily v. DeCrespigny, L. R. 4 Q. B. 180. If it is apparent that parties contracted on the 11. Governmental interference. A contract is invalidated by the subsequent enactment of police regulations which render its performance illegal as to one of the parties. Jamieson v. Indiana Nat. Gas Co. (Ind.) 12 L. R. A. 652. An act of parliament compelling one to transfer premises to a railroad company releases him from à covenant not to permit erections thereon. Baily v. DeCrespigny, L. R. 4 Q. B. 180. An embargo for an indefinite time will not dissolve, but only suspend, the contract of a ship to carry goods. Hadley v. Clarke, 8 T. R. 259; Baylies v. Fettyplace, 7 Mass. 324. A hostile embargo will not relieve from liability cannot excuse nonperformance upon the plea of accident. If protection is sought from such a contingency, it must be specified in the con tract. Booth v. Spuyten Duyvil R. Mill. Co. 60 N. Y. 487; Ward v. New York Cent. R. Co. 47 N. Y. 33; Nelson v. Odiorne, 45 N. Y. 493; Read v. Spaulding, 30 N. Y. 639, 86 Am. Dec. 426; Price v. Hartshorn, 44 N. Y. 99, 4 Am. Rep. 645; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; New York Cent. & H. R. R. Co. v. Standard Oil Co. 87 N. Y. 492; Tompkins v Dudley, 25 N. Y. 272, 82 Am. Dec. 349. This action is founded solely on an express contract; the plaintiff proved the contract, and the breach and failure to pay the money on demand. Graves v. Waite, 59 N. Y. 156; Ross v. Terry, 63 N. Y. 613; Neftel v. Lightstone, 77 N. Y. 96; Harris v. Todd, 16 Hun, 249. The burden therefore rests on defendant to show due diligence, or a loss for which he is not liable. Schwerin v. McKie, 5 Robt. 404; Arent v. Squire, Daly, 347; Edw. Bailm. § 62; Wharton, Neg. § 422; Collins v. Bennett, 46 N. Y. 490. Where a party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. for breach of an express contract to load a vessel. Atkinson v. Ritchie, 10 East, 530. An embargo will not relieve from an express warranty that a ship will sail on a certain day. Hore v. Whitmore, 2 Cowp. 784. Seizure and confiscation of goods in transit on board a ship in a foreign port on the ground that they are contraband goods will not relieve a carrier from an express contract to carry and deliver them. Spencek v. Chodwick, 10 Q. B. 517. Refusal of the authorities to permit a vessel to receive a cargo on board will not excuse an absolute engagement to take it. Holyoke v.Depew,2 Ben.334. The above cases may be harmonized on the theory that hostile embargoes, confiscation, and the like must be regarded as among the possible contingencies contemplated by the parties. An inevitable accident will not relieve a carrier from liability on an express contract to deliver goods within a specified time. Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142. An unexpected rush of freight will not excuse a carrier from an express contract to carry at a certain time. Deming v. Grand Trunk R. Co. 48 N. H. 455. An nnavoidable accident is no excuse for breach of an express contract of a railroad company to furnish cars on a certain day. Harrison v. Missouri Pac. R. Co. 74 Mo. 364. An express covenant to have a ship at a certain port by a certain day is not excused by inability to fulfill it because of contrary winds and bad weather. Shubrick v. Salmond, 3 Burr. 1637. An act of God does not excuse a carrier for failure to perform its express contract to transport a passenger within a reasonable time. Van Buskirk v. Roberts, 31 N. Y. 661, Story, Bailm. 38, § 36; Platt, Covenants, pt. 6, chap. 2, 1, p. 582; Chitty, Cont. p. 567, Am. ed. by Perkins, 1839; Cobb v. Harmon, 23N. Y. 150; Tompkins v. Dudley and Read v. Spaulding, supra; Wheeler v. Connecticut Mut. L. Ins. Co. 82 N. Y. 550; Nelson v. Odiorne, 45N.Y. 493; Booth v. Spuyten Duyvil R. Mill. Co. 60 N. Y. 487; Spalding v. Rosa, 71, N. Y. 40, 27 Am. Rep. 7. Negligence will be presumed from the fact that the money for the milk, butter, cheese, etc., was not paid to plaintiff, on demand. Fairfax v. New York Cent. & H. R. R. Co. 67 N. Y. 11: Curtiss v. Delaware, L. & W. R. Co. 74 N. Y. 124, 30 Am. Rep. 271; Wescott v. Fargo, 6 Lans. 319; Burnell v. New York Cent. R. Co. 45 N. Y. 184; Collins v. Bennett, 46 N. Y. 490. Plaintiff was not required to point out the precise act or omission in which the negligence of the defendant, his servants or agents consisted. The J. Russell Mfg. Co. v. New Haven S. B. Co. 50 N. Y. 127; Seybolt v. New York, L. E. & W. R. Co. 95 N. Y. 569, 47 Am. Rep. 75. A party is not required to prove a fact which is necessarily much better known to his adversary than to himself. Field v. New York Cent. R. 32 N. Y. 339; Searles v. Manhattan Elev. R. Co. 2 Cent. Rep. 442, 101 N. Y. 661. Defendant being the owner and in possession A carrier is not relieved from its obligation on a special contract of shipment because the existence of a mob prevents its performance. White v. Missouri P. R. Co. 2 West. Rep. 152, 19 Mo. App. 400. (But the rule is otherwise where there is no time fixed for completing the transportation. See, as illustrating that class of cases, International & G. N. R. Co. v. Tisdale, 4 L. R. A. 545, 74 Tex. 8.) A strike of laborers does not relieve consignees from liability for failure to unload a ship within the number of days expressly fixed by the bill of lading. Budgett v. Binnington (C. A.) [1891] 1 Q. B. 35. Rut it is otherwise if no time is stipulated. Hick v. Rodocanachi (C. A.)% Q. B. 626. An agreement by a carrier to procure the renewal of notes or return them is not excused by the refusal of an indorser to whom they have been be has been summoned as trustee of a subsequent delivered to give them up or renew them becauseindorser. Wareham Bank v. Burt, 87 Mass. 113. One who contracts to furnish a full cargo for a ship is not excused from performance because it is difficult or even impossible. Nelson v. Odiorne, 45N. Y. 489. The prior destruction of a vessel relieves from liability on a contract to carry a person thereon as a passenger. Bonsteel v. Vanderbilt, 21 Barb. 26. This decision, which may seemingly conflict with the preceding ones, is clearly within the exception as to destruction of the subject matter. Destruction of subject matter. The destruction of a music hall releases both parties from the contract for the use of it for certain future dates. Taylor v. Caldwell, 3 Best & S. 826. The destruction of a building discharges a contract for the lease of apartments therein. Graves v. Berdan, 29 Barb. 100; Kerr v. Merchants Exch. Co. 3 Edw. Ch. 315, 6 L. ed. 672; Stockwell v. Hunter, 11 Met. 448, 45 Am. Dec. 220; Winton v. Cornish, 5 Ohio, 477; Womack v. McQuarry, 28 Ind. 103, 92 Am. Dec. 306; Alexander v. Dorsey, 12 Ga. 12, 56 Am. Dec. 443. i 1891 STEWART V. STONE. of the premises and carrying on the business | due care by the bailee according to the nature Leary v. Woodruff, 4 Hun, 99; Radway v. Briggs, 37 N. Y. 256; Swords v. Edgar, 59 N. Y. 37, 17 Am. Rep. 295; Bunnell v. Stern, 34 N. Y. S. R. 221; Kennedy v. New York, 73 N. Y. 368, 29 Am. Rep. 169; Cannavan v. Conklin. 1 Daly, 509; Tousey v. Roberts, 21 Jones & S. 446; Ritterman v. Ropes, 19 Jones & S. 25; Camp v. Wood, 76 N. Y. 92, 32 Am. Rep. 282; Clussman v. Long Island R. Co. 9 Hun, 618; Pollett v. Long, 56 N. Y. 200; Lowery v. Manhattan Ry. Co. 99 N. Y. 166. Destruction by an accidental fire not caused by lightning is not the act of God. Miller v. Steam Nav. Co. 10 N. Y. 431; Goold v. Chapin, 20 N. Y. 259, 75 Am. Dec. 398: Chamberlain v. Western Transp. Co. 44 N. Y. 307, 4 Am. Rep. 681; Fenner v. Buffalo & S. L. R. Co. 44 N. Y. 507; Lamb v. Camden & A. R. & Transp. Co. 46 N. Y. 286. Ouderkirk v. Central Nat. Bank, 119 N. Y. In an action of this character where plaintiff Seybolt v. New York, L. E. & W. R. Co. 95 Merely showing that a fire occurred and consumed the property, makes no defense with-Y. 408. out adding the proof of the exercise of proper care. Curtis v. Rochester & S. Co. 18 N. Y. 543; Scott v. London Dock Co. 3 Hurlst. & C. 596. Unless the evidence shows the exercise of These cases are easily distinguishable from those in which land and buildings together are rented, and in which the loss of the building is the loss of part only of the subject matter. The falling of the walls of a brick building releases one from a contract to do the wood work on the building. Schwartz v. Saunders, 46 Ill. 18. A contract to repair a house is discharged by the destruction of the house by fire before the repairs are completed. Lord v. Wheeler, 67 Mass. 282. A contract to furnish part only of the labor and materials for the erection of a building is discharged on the destruction of the building by fire Butterfield v. Byron before it is completed. (Mass.) 12 L. R. A. 571. The law makes the defendant liable, unless he shall show affirmatively that the injury was by an act of God or the public enemy, and was without any fault on the part of defendant. ages to a vessel relieves the owner from his contract Small-pox breaking up a school does not relieve But the burning of a school-house relieves the school district from its contract employing a teacher where the parties must have contemplated the continued existence of the school-house as the basis of performance. Hall v. School Dist. No. 10, 24 Mo. App. 213. The inability of a corporation to continue business is no excuse for its breach of a contract of Lewis v. Atlas Mut. L. But a contract to build a house on another's land within a certain time is not discharged by the de-employment of an agent. struction of the house when nearly completed. Ins. Co. 61 Mo. 534. Cutcliff v. McAnally, 88 Ala. 507; School Dist. No. 1 v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Adams v. Nichols, 19 Pick. 275, 31 Am. Dec. 137; Commercial F. Ins. Co. v. Capital City Ins. Co. 81 Ala. 320, 60 Am. Rep. 162; Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec. 349: School Trustees of Trenton v. Bennett, 27 N. J. L. 513. The destruction of a building which one is bound by contract to erect is not the destruction of the subject matter on which the contract is to operate, as would be the case if the ground on which it was to be built were to disappear in an earthquake, but is merely the destruction of the contractor's own materials and labor. The destruction of personal property before title has passed, but after a contract for the sale of that specific property, relieves the vendor from liability for failure to deliver. Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415. The exhaustion of a coal mine excuses further performance of the contract of a lessee to work it during the continuance of the lease in a good and workmanlike manner. Walker v. Tucker, 70 Ill.527. Contracts of employment. Effect of sickness or death. Sickness will not excuse for breach of a contract to finish carpenter work on a building by a certain day. Cassady v. Clarke, 7 Ark. 123. But the sickness of a person relieves him from liability for failure to perform a contract for services which can be performed by him alone. Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 388; Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7; Clark v. Gilbert, Barb. 341. 26 N. Y. 279, 84 Am. Dec. 189; Fahy v. North, 19 The death of a consulting engineer during the formance and authorizes a recovery for what was period of his employment excuses further peralready earned. Stubbs v. Holywell R. Co. L. R. 2 Exch. 211. The illness of an apprentice excuses performance Boast v. Firth, L. R. 4 C. of a covenant to serve. P. 1; Caden v. Farwell, 98 Mass. 137. A bond in replevin to prosecute a suit to effect is complied with by prosecuting it until the death The discontinuance of a voyage caused by dam- of the plaintiff. Ormond v. Bierly, Carth. 520. 1 |