Greening vs. Bishop. GREENING vs. BISHOP. BILL OF EXCEPTIONS. Presumption when it is not certified to contain all the evidence. In an action for damages alleged to have accrued from defendant's negligence, a nonsuit was refused at the close of plaintiff's evidence, but granted after defendant's evidence was in. The bill of exceptions not being certified to contain all the evidence: Held, that the nonsuit must be presumed to have been justified by the evidence. APPEAL from the Circuit Court for Fond du Lac County. This was an action for damages accruing to the plaintiff from the running away of his horses and the breaking of the wagon to which they were attached; the complaint alleging that the horses were frightened by a hog lying in a public highway on which plaintiff was then driving, and that the hog belonged to the defendant and was then and there unlawfully at large through his negligence. The answer was a general denial; but defendant admitted at the trial that the hog in question belonged to him, and "that the damage done to plaintiff was at least $44.95." The testimony for the plaintiff found in the bill of exceptions tends to show that the accident was caused by the presence of the hog in the highway, and that the animal had been at large nearly twenty-four hours. A nonsuit having been refused at the close of plaintiff's evidence, defendant introduced evidence tending to show that the hog escaped from his premises only a few hours before the accident, and without any negligence on his part. He then moved for a nonsuit upon the grounds, that the evidence did not disclose any cause of action against him, did not show him guilty of any neglect, and did not show the hog in question to be an animal likely to frighten horses of ordinary gentleness. The court granted a judgment of nonsuit, and the plaintiff appealed. Jennings vs. Lyons. The bill of exceptions is not certified to contain all the evidence. The cause was submitted upon the brief of E. T. Delany, for the appellant, and that of Eldredge, Thorpe & Hurley for the respondent. The questions discussed in these briefs are not passed upon by the court. PER CURIAM. It appears that when the plaintiff rested, the defendant moved for a nonsuit, which motion was denied. When the defendant closed the case on his side, he renewed the motion, and it was granted. It is claimed that this ruling was erroneous, and that there was sufficient evidence to carry the case to the jury upon the question whether or not the defendant was guilty of negligence in suffering the animal to be at large in the street. There is no certificate that the bill of exceptions contains all the testimony given on the trial. Consequently we are unable to say that the nonsuit was wrong. In order to reverse the judgment, it must appear that the circuit court erred in granting the nonsuit; in other words, we must have some means of knowing that we have all the evidence before us upon which the court acted. Without a certificate that the bill of exceptions contains all the testimony, we must presume that the nonsuit was right and fully justified by the evidence which was before the court when the motion was granted. The judgment of the circuit court is therefore affirmed. JENNINGS VS. LYONS. CONTRACTS. (1) When for personal services. (2-4) When sickness ex cuses full performance of entire contract, and permits recovery on a quantum meruit. 1. Where one hires a man and his wife to live in his family and work for him, this is a contract for their personal services. Jennings vs. Lyons. 2. In general, in case of an entire contract, the party claiming under it must show full performance on his part; but full performance is excused where rendered impossible by the act of God, or of the law, or of the other party to the contract. 3. Sickness or death is an act of God in such a sense as generally to excuse full performance of an entire contract, and permit a recovery on a quantum meruit; but otherwise where the sickness is one which should have been foreseen and provided against by the party in default. 4. Plaintiff contracted to render to defendant the domestic services of himself and wife for one year, at a specified price. Four months and ten days thereafter the wife left the service in anticipation of her confinement; both were then discharged from the service, and the wife was confined four or six weeks thereafter. Held, that plaintiff was not excused by such sickness, which he should have foreseen, and cannot recover on a quantum meruit. APPEAL from the Circuit Court for Fond du Lac County. Plaintiff brought this action to recover the value of the services of himself and wife for four months and ten days. The defense was, that the services were rendered under a contract by which plaintiff and his wife were to work for defendant one year from November 17, 1873, he upon the farm and she in the house, for $300; that it was distinctly understood that defendant's object was to secure plaintiff's services during the spring, summer and fall months, and that he would not employ plaintiff during the winter months except for that reason; and that defendant, without just cause or legal excuse, failed to perform his contract. The case made by the evidence will sufficiently appear from the opinion. The jury were instructed that if at the time plaintiff and his wife quit working for defendant, the wife was sick and unable to do her part of the work, plaintiff was not bound to a further performance of the contract, and was entitled to recover what the services of himself and wife were worth for the time they actually worked. The plaintiff had a verdict and judgment; and the defendant appealed. D. W. C. Priest, for appellant: Jennings vs. Lyons. 1. The contract was entire, and plaintiff could not recover without a full performance, or a legal excuse for nonperformance. McMillan v. Vanderlip, 12 Johns., 165; Beebe v. Johnson, 19 Wend., 500; Webb v. Duckingfield, 13 Johns., 390; Jennings v. Camp, id., 94; Monell v. Burns, 4 Denio, 121; Lantry v. Parks, 8 Cow., 63; Galvin v. Prentice, 6 Am. R., 58; 45 N. Y., 162, citing Smith v. Brady, 17 N. Y., 173; 20 id., 197; 1 Parsons on Con., 522, note 1; Chitty on Con. (9th Am. ed.), 504; Story on Con., § 972; Gordon v. Brewster, 7 Wis., 355. A contract as to acts of third parties is binding though it be difficult of performance; and full performance is a condition precedent to recovery. Blacksmith v. Fellows, 3 Seld., 401; Worsley v. Wood, 6 Term, 710; Davidson v. Mure, 3 Doug., 28; Chitty on Con., 572; 12 N. Y., 99; 1 Duer, 209. Sickness of any but the contracting party will not avail unless the contract contemplates the services of the particular individual; nor will it then avail unless the services to be performed require more than ordinary skill. Wolfe v. Howes, 20 N. Y., 197; 21 id., 397; 36 id., 221; 49 id., 552; 17 id., 173; 24 Barb., 174 and 666; Green v. Gilbert, 21 Wis., 400. The work to be done by the wife in this case was ordinary housework, that could have been done by any hired girl during the wife's sickness. 2. Sickness, to excuse performance, must, like any other contingency relied on for that purpose (Story on Con., $$ 972-975; Story on Bailm., § 36), be such as in the nature of the case would not be foreseen and provided against; and the sickness of the wife in this case was clearly not of such a character Thos. W. Spence, for respondent: The contract was for the joint personal services of the plaintiff and his wife; the compensation agreed upon was for such joint services; and the inability of one to perform would necessitate the giving up of the contract by both. And sickness of the persons bound by the contract to render their personal services, making performance impossible, is a legal excuse. Jennings vs. Lyons. Green v. Gilbert, 21 Wis., 395; Wolfe v. Howes, 20 N. Y., 197. A forfeiture of wages for the services performed should be enforced only where there is a voluntary abandonment of the service, and not where the abandonment is caused by a visitation of Providence. Fuller v. Brown, 11 Met., 440. COLE, J. We have no doubt that the contract was for the personal services of the plaintiff and wife. The counsel for the defendant claimed that the work to be performed by the wife required no peculiar skill, and could have been performed by any ordinary hired girl competent to do housework. But the relations which a domestic servant holds to the family, and the nature of the services to be performed, are such, that the temper, habits, intelligence and character of the person are more regarded than mere ability to do work. Considering the nature of the employment, if ever a contract can be said to call for personal services, it would seem to be in case of a domestic who lives in the family of another. This view commends itself to the judgment and good sense of every one on a moment's reflection, and need not be dwelt upon further. The question is then presented, whether the sickness of the wife under the circumstances excused performance, if the plaintiff agreed that he and his wife should work one year? Upon that point the court below instructed the jury, that if they should find that the contract was as claimed by the defendant, that the plaintiff and wife were to work for him a year for $300, yet if the plaintiff quit work because his wife was sick and unable to do her part of the work, this would excuse full performance, and the plaintiff could recover what the services of himself and wife were worth for the time they actually worked. This charge was excepted to on the part of the defendant. The general rule doubtless is, that when a contract is entire, operating as a condition precedent, it is |