The opinion of the court was delivered, by
Agnew, J.We decided the same question contained in this record at Harrisburg in May last, in the case of Strickler v. Landis, 11 Wright 518, from Lebanon county. The learned judge in the court below was doubtless not aware of that decision. He put the case on the ground that Gougler was relieved from service by the substitution of Price, and that as to all beyond, he had no interest; and if Price deserted, as it seems he did within ten days, it was the affair of the government only. We cannot subscribe to this reasoning. As a substitute it is true, after he was sworn in, the desertion was an affair of the government; and few would sympathize with him had government dealt with him according to his desert. But his contract was not only for substitution, but for service. He expressly agreed to serve during the draft of nine months, and that the sum sued for should not be paid until the nine months had expired. He therefore stood in a contract relation to Gougler, as well as in the military relation to the government. He failed to perform his agreement, and as to Gougler, therefore, the consideration has failed, and it is inequitable he should pay for a service left unperformed. But Price not only asks to be paid without performing the service he was to give in advance of payment, but sets up as an excuse for non-performance his own demerit and military crime. Technically and literally he has broken his promise'; and certainly no one can discover any merit in the excuse for his breach. He has broken both his contracts — ■ that with the government and that with his principal — and we have no disposition to accept his breach of the former as a defence to the latter.
The judgment is therefore reversed, and a procedendo awarded.