Jennings vs. Lyons. necessary for a party to show full performance on his part before he can maintain an action upon it. It would appear like mere affectation to attempt to refer to the elementary writers or adjudged cases where this principle is stated and affirmed. The authorities, however, recognize certain exceptions to the rule, as where performance has been rendered impossible by the act of God, by the act of the law, or by the act of the other party. 2 Chitty on Con., p. 1073; 2 Parsons on Con. (5th ed.), p. 672 et seq.; Story on Bailment, § 36. And where the act to be performed is one which the promisor alone is competent to do, the obligation is discharged if he is prevented by sickness or death from performing it. Wolfe v. Howes, 20 N. Y., 197; Ryan v. Dayton, 25 Conn., 188; Fuller v. Brown, 11 Met., 440; Knight v. Bean, 22 Maine, 531; Lakeman v. Pollard, 43 id., 463; Green v. Gilbert, 21 Wis., 395. In other words, sickness or death is generally regarded as an act of God in such a sense that it excuses the nonperformance, and a recovery is allowed upon a quantum meruit. In this case In this case it is insisted that the sickness, or anticipated sickness, of the wife furnished no excuse for the failure to perform the contract, and that the instruction of the court that it did excuse was erroneous. The argument is based on these facts: It appears that the plaintiff and wife commenced work for the defendant on the 17th of November, 1873, and quit about the 27th of the following March. The reason why the parties left their service was, as stated by the plaintiff himself, that his wife was in a family way—expecting soon to be confined, and as a consequence was unable to work. The plaintiff says that she was actually confined within four or six weeks after she left the defendant's employment. It is argued that the plaintiff was fairly chargeable with a knowledge of the condition of his wife; must be presumed to have known that she was nearly four months advanced in pregnancy; was bound to anticipate her sickness as an inevitable event; and Keenan vs. Hayden. should have provided for it in his contract. It is said that it was the plaintiff's own fault under such circumstances to undertake and agree that he and his wife would work for a year, because he must have known that it would be impossible for him to perform his contract, and therefore the case does not come within the reason of the rule that sickness excuses. It is difficult to see any defect in this argument. It is incredible that the plaintiff was ignorant of the condition of his wife when he entered into the contract. He must have known that it would be impossible for her to work at the period of her confinement and for some time thereafter. There seems no reason why he should not be held liable for a breach of his contract, absolute in its terms; "not, in fact, for not doing what cannot be done, but for undertaking and promising to do it." For when performance becomes impossible by reason of contingencies which should have been foreseen and provided against in the contract, the promisor is held answerable. 2 Parsons on Con., 672-3. This principle applies to the facts of this case, if indeed the contract was as claimed by the defendant. By the Court.-The judgment of the circuit court is reversed, and a new trial ordered. KEENAN VS. HAYDEN. EVIDENCE: COURT AND JURY. (1) When question of scienter to be submitted to the jury in action for injuries from ferocious dog. (2) Court not bound to instruct jury as to the effect of one among several facts bearing on the question. 1. Plaintiff's minor child having been bitten by defendant's dog, there was evidence, in an action for the injury, tending to show that defendant had owned the dog for two years before that time; that it was kept tied some portions of the time; that defendant sometimes took it on the Keenan vs. Hayden. street tied with a rope, thus keeping it under his control; that before biting plaintiff's child, it had bitten several persons, mainly children, at different times, and had at divers other times violently attacked many other persons; that it frequently attacked persons walking along the street in the vicinity of the defendant's residence; and that it was a cross dog, and was known and shunned as such by defendant's neighbors. Held, that the question of defendant's knowledge of the dog's vicious propensities was properly submitted to the jury on this evidence. 2. In such a case, where there are several facts in evidence tending to prove the scienter, it is not the duty of the court to instruct the jury what the consequences would have been if only one of those facts had been in evidence; and there was no error in this case in refusing to charge that the mere fact of defendant's confining his dog at times would not of itself warrant the jury in finding that it was known by defendant to be vicious. APPEAL from the County Court of Milwaukee County. Action to recover the expenses incurred by the plaintiff in caring for and curing his minor son of wounds inflicted upon him by the female dog of the defendant. It is averred in the complaint that, before the injuries were inflicted, the defendant had notice of the vicious propensities of his dog, etc., notwithstanding which he suffered her to go at large and do the injury. The answer is a general denial. A motion for a nonsuit for the alleged want of proof of the scienter was denied, and the plaintiff had a verdict. A motion for a new trial was also denied, and judgment entered pursuant to the verdict; and the defendant appealed. Jared Thompson, Jr., for appellant, contended, that there was no evidence to go to the jury, that the defendant, or any member of his family, or any of his employees, had knowledge or notice that his dog was of a ferocious disposition, or accustomed to bite mankind. 1 Ld. Ray., 606; 12 Mod., 332; Judge v. Cox, 1 Starkie, 285 (2 E. C. L., 392); Blackman v. Simmons, 2 C. & P., 138 (14 E. C. L., 243); Beck v. Dyson, 4 Campb., 198; Cook v. Waring, 3 Hurl. & Colt., 332. The fact that the animal had been tied up, did not tend to prove knowledge by the defendant that she was vicious, and was not evidence to go to the jury on that question. Jones v. Perry, Keenan vs. Hayden. 2 Esp., 482, and the cases above cited. 2. The court erred in submitting to the jury the question of the scienter, to be answered by them in a special verdict. Tay. Stats., 1496, § 14; McMasters v. Mutual Co., 25 Wend., 379. 3. The court erred in giving the special instructions asked by the defendant. John J. Orton, for respondent, contended that there was evidence of notice to the defendant's wife, who was shown to be his agent in running his saloon and boarding house during his absence; and that this was sufficient. 2 Esp., 482; Applebee v. Percy, L. R., 9 C. P., 647; Milliken v. Dehon, 27 N. Y., 364. LYON, J. It is conceded that the minor son of the plaintiff was severely bitten by the defendant's dog, and that, if the plaintiff is entitled to recover anything, the damages were assessed at a reasonable sum. The principal question to be determined is, whether there was sufficient testimony tending to show that the defendant knew the vicious propensities of the dog, to justify the court in submitting the question of scienter to the jury. Or the question is, rather, whether there was any testimony in the case tending to prove such knowledge by the defendant; for if there was any testimony of that character, the question was properly left to the jury. The testimony tends to prove that the defendant had owned the dog two years before she bit the plaintiff's son; that she was kept tied some portions of that time; that the defendant sometimes took her on the street tied with a rope, by means of which he kept her under his control; that before she bit the plaintiff's son, she bit several persons, mainly children, at different times, and at various other times violently attacked many other persons; that she frequently attacked persons passing along the street in the vicinity of the defendant's residence; and that she was a cross dog, and was known and shunned as such by the defendant's neighbors. One Keenan vs. Hayden. witness testified as follows: "There was not a child in the neighborhood who was not afraid of this dog. She had bitten most of them, and all the neighbors complained about the dog." About three months before the plaintiff's son was bitten, the dog had bitten a boy named Clark; and the mother of the latter testified that she informed the defendant of the fact, but she could not remember whether it was before or after plaintiff's son was bitten. Much of the foregoing testimony was controverted on the trial, yet the jury may have believed it; and if the same is true, the presumption is very strong that the defendant, and his agents who had charge of the dog when the defendant was absent, must have had some knowledge of the character and conduct of the dog. We think the testimony tended sufficiently in that direction to render the question of scienter a proper one for the determination of the jury, and hence, that the motion for a nonsuit was properly denied. The defendant prayed three instructions to the jury, which the court refused to give. They were to the effect that the mere fact that the defendant confined his dog at times, unaccompanied by proof of other facts and circumstances tending to establish the scienter, would not, of itself, warrant the jury in finding such scienter, or that the dog was tied because she was vicious. The fact of confining the dog does not stand by itself, but is accompanied by proof of other facts tending to show that the defendant knew the character and conduct of his dog; and certainly it was not the duty of the court to instruct the jury what the consequences would have been had the fact of confining the dog been the only one proved having such tendency. The charge of the court to the jury is a full and fair statement of the law of the case, and no exception to it was taken. This disposes of all the alleged errors, of sufficient importance to require notice, adversely to the appellant. By the Court.-Judgment affirmed. VOL. XXXIX. — 36 |