
    Ebenezer Willington versus The Inhabitants of West Boylston.
    The plaintiff, by an express simple contract with a town, agreed to board a pauper for a year at the rate of a dollar a week, and to save the town from any expense on the pauper’s account; at the end of the first week, however, the paupei died. Held, that the stipulations were dependent, and that the plaintiff had not performed his part of the contract, and so could not recover for the whole year ; but that nevertheless, as he was prevented from fulfilling it by inevitable accident, he was entitled, on an implied promise, to compensation for the part performed.
    Assumpsit. At the trial it appeared, that at a meeting of the inhabitants of West Boylston, on the 6th of March, 1820, it was voted “to put up the poor of the town separately to the lowest bidder, for one year, commencing on the 10th day of May then next, to be boarded, clothed and nursed, and to free the town from every expense on their account, except the doctor’s hill.” In pursuance of this vote the plaintiff bid oil a pauper, named Howe, at a dollar a week, and took him to board on the 10th of May. Howe died on the 17th of May, after a severe illness by which the plaintiff incurred expense and trouble of much greater amount than at the rate of one dollar a week. The plaintiff demanded a settlement and an order on the town treasury for 52 dollars, which the selectmen reufsed to give ; but they gave him an order for 26 dollars.
    
      Oct. 5th 1825.
    If the plaintiff was entitled to recover the amount of a whole year’s board at the rate above mentioned, the defendants were to be defaulted, and judgment was to be entered for the balance remaining unpaid. If he was entitled to recover for only one week’s board at that rate, he was to become nonsuit. If he might recover upon a quantum meruit, then damages were to be assessed and balanced against the sum received by him, and according as the balance should be found, a nonsuit or default was to be entered.
    
      J. Davis and Mien, for the plaintiff,
    contended that this was an entire contract for a year, and could not be apportioned. For a premium of 52 dollars, the plaintiff undertook to indemnify the defendants against expenses which might have far exceeded that sum. 2 Saund. 422 a, note 2; Paradine v. Jane, Alleyn, 27; Chesterfield v. Bolton, Com. Rep. 627; Phillips v. Stevens, 16 Mass. R. 238; Bullock v. Dommitt, 6 T. R. 650; Fowler v. Bott, 6 Mass. R. 63; Shubrick v. Salmond, 3 Burr. 1637; Chandler v. Grieves, 2 H. Bl. 606, note (a); 4 Bac. Abr. 566, Master &c., C; Rex v. Hales Owen, 1 Str. 99 ; M'Millan v. Vanderlip, 12 Johns. R. 165; Tyrie v. Fletcher, Cowp. 66; Loraine v. Thomlinson, 2 Doug. 585; Taylor v. Lowell, 3 Mass. R. 343; Thorpe v. White, 13 Johns. R. 53; Stark v. Parker, 2 Pick. 267; Minot v. Durant, 7 Mass. R. 436.
    
      Newton, contra,
    
    said the express contract was discharged by the act of God, and that the plaintiff was entitled only to a compensation pro rata. Luke v. Lyde, 2 Burr. 882; Bac. Abr. Condition, Q, 1; Thomas v. Howell, 4 Mod. 66; Baylies v. Fettyplace, 7 Mass. R. 338; Badlam v. Tucker, Pick. 284.
    
      
      Oct. 8th, 1825.
   Wilde J.

delivered the opinion of the Court. It is no doubt true, that whenever the performance of a contract becomes impossible by an act of God, no action will lie to recover damages for the non-performance. But this principle is not applicable to this case : for the performance on the part of the plaintiff, and not on the part of the defendants, has become impossible ; and the real question is, whether the plaintiff, being excused from the performance of his part of the contract, can nevertheless hold the defendants to performance on their part.

It is a well-established principle in cases of mutual covenants or promises, that if one thing be the consideration of the other, there a performance is necessary to be averred, unless a day is appointed for the performance, or some other circumstance appears, showing the intention of the parties to rely on their respective covenants or promises. And as Lawrence J. says in the case of Glazebrook v. Woodrow, 8 T. R. 373, “ whether one promise be the consideration of another, or whether the performance, and not the mere promise, be the consideration, must be gathered from, and depends entirely upon, the words and nature of the agreement.”

Admitting this as the sound rule of construction, there can be no doubt as to the true consideration of the defendants’ promise. Here was no time appointed for the payment of the money. The defendants agree to pay a dollar per week for the board, clothing, and nursing of the pauper for the term of a year. And the plaintiff, to entitle himself to compensation according to this contract, must aver and prove performance on his part. The rule laid down by Lord Holt, in the case of Thorpe v. Thorpe, 1 Salk. 171, is in point. u In executory contracts, if the agreement be, that the one shall do an act, and for the doing thereof the other shall pay, &c. the doing of the act is a condition precedent to the payment.” It is very clear, therefore, that if nothing had intervened to excuse the plaintiff from performing his part of the contract, he would not be entitled by the other facts in the case to maintain the present action, which would be governed by the same principles as were laid down in the case of Stark v. Parker, 2 Pick. 267. But as the plaintiff has performed his engagement in part, and has been prevented from fulfilling it by inevitable accident, he is entitled to compensation for the part performed, on an implied promise. The death of the pauper operated as a dissolution of the express contract. The plaintiff could not perform it on his part, and the defend ants are excused on account of the failure of the consideration. Whether the plaintiff is entitled to a pro rata compensation, or may entitle himself to something more on an implied promise for other services, is, we apprehend, immaterial, since in either case he has probably received more than an equivalent; and unless evidence can be produced to show the contrary, a nonsuit must be entered. 
      
       Where a purchaser of land hag performed in part the terms of the contract, and the failure to perform the residue has been occasioned by circumstances which neither party could control, equity will arrange a just compensation to the purchaser, and charge it upon the land sold. Williams v. Champion, 6 Ohio R. 170.
     
      
       See Chitty on Contracts, (3d Amer. ed.) 273; 10 Amer. Jurist, 250 to 253; Platt on Covenants, 275, (Law Libr. JVo. 7, p. 275.)
     
      
       See Platt on Covenants, 83 et seq., 105,106, (Law Libr. JVo. 7, p. 83 <1 seq., 105,106.) 1 Chitty on PI. (6th Amer. ed.) 355, 356.
     