COMPENSATION FOR TRANSPORTING PUPILS PAYABLE DURING A SPECIFIED PERIOD.

Court of Appeals for Franklin County.

#### F. J. Cashdollar v. Will Clotts et al.

Decided, February 12, 1920.

*Schools*— Transportation *of Pupils*— Compensation *Payable During Month Schools Were Closed.*

1. A party hauling pupils to and from school under an entire contract for the school year is not subject to deduction for the time the schools are closed by a temporary order, indefinite as to time, of the board of health where it is conceded that such party during said period held himself in readiness to -perforin the contract.

2. The fact that compensation under said contract is payable by the month, and that the temporary order remained in force for one month does not affect the result.

*504
      *F. M. McCartney*and *David E. Evans,*for plaintiff in error.

*Hugo N. Schlesinger,*Prosecuting Attorney, and *John H. Summers,*Assistant Prosecuting Attorney, for defendants in error.

Allread, J.

Cashdollar contracted,

> “To furnish horses and drive wagon of Route No. 4 to haul all pupils of said route to and from school for the school year 1918-1919 * * * and also agreeing to abide by and maintain the rules and regulations adopted by said Board * * , *.

> “And in consideration of said service the Board of Education agrees to pay to said E. J. Cashdollar the sum of Sixty-two dollars and fifty cents ($62.50) monthly for nine months.”

Cashdollar entered upon the performance of the contract. On November 30th the schools were ordered closed by the Board of Health and remained closed for the entire month of December. The question here involves the liability to Cashdollar for the month of December. The question arose upon demurrer to the answer which contained among other things an admission of the terms of the contract and of Cashdollar’s readiness and willingness to comply with the contract during the month of December. The answer avers that the schools were closed by order of the Board of Health and remained closed during said month. It does not appear that the order closing the schools was for any definite period.

The contract und,er consideration was an- entire contract for . the school year of nine months at a stipulated compensation per month. According to the terms of the contract if Cashdollar performed he was entitled to the full compensation provided for. There was no exception relieving either party from the obligation so created.

The board of education relies upon an exception created by law. This exception is thus stated in 9 Cyc., 629:

> “To the general rule that a party to a contract is not discharged by subsequent impossibility of preformance there is an exception where the performance becomes impossible either by reason of (1) A change in the law or (2) By some action by or under the authority of -the government. In such cases the promisor is discharged * * * the exception does not apply, how*505ever, where the impossibility created by the law is only temporary. ’ ’

Most, if not all, the oases cited by counsel for defendant in error are cases where the future performance of the contract becomes wholly impossible and where both parties were therefore discharged. Here the future part of the contract was not wholly impossible. Cashdollar was not wholly relieved from future performance. On the contrary he was expected to perform the contract except for an indefinite period affected by the order of the Board of Health. It would seem to be reasonable that impossibility of performance by act of law should, to be effective, release both parties to the contract. Cashdollar under the circumstances of this case performed the first clause of the contract, to-wit: to furnish horses, and was ready and willing to perform the other covenants. The order being for an indefinite period Cashdollar was under obligation for every school day to be ready to comply with the contract and could not use his horses or employ his own time in any occupation inconsistent with his contract. We think it would, therefore, be unjust to hold Cashdollar and relieve the board for the indefinite and uncertain period covered by the Board of Health. The exception referred to in the text in Cye., is applicable to the case at bar. The Attorney General in a very elaborate opinion sustained the Board of. Education in a contract materially different from the one at bar. In the opinion he expressly confines the ruling to the contract under consideration. If the contract in the case at bar could be fairly construed to be one by the day or by the month the rule of liability might be different. Counsel for the Board of Education rely on the clause making the service subject to the’ order of the said Board, that, however, relates to the manner of service and not to the time which is definitely fixed by the contract. The Board would not, therefore, in our judgment be relieved from payment of said compensation by said order of the Board of Health suspending schools for an indefinite period.

Judgment of the court of common pleas reversed and that of the magistrate affirmed.

Fernedinq and Kunkle, JJ., concur.