Dissenting. — I am unable to concur in the foregoing opinion. The rule is “that when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” Harrison v. Railroad, 74 Mo. 364, 371; Fulkerson v. Eads, 19 Mo. App. 620. Not even an absolute impossibility will be a defence with failure to comply with the engagement. Hutchinson on Carriers,. sect. 317; Angelí on Carriers, sect. 294. Parties should look out for such contingencies-when they make their contracts. I cannot say, with my associates, that plaintiff contracted “to teach a school in the school house then owned by the defendant. No such provision is in the contract. That the parties may have-contemplated the school would be taught in the school house then owned by defendant is quite likely, but it was a mere matter of contemplation, or expectation, ancL*225not of contract. So in contracting with a carrier, the parties may contemplate the freight will pass over a certain bridge, indeed without the bridge it may be impossible to move it, yet if the bridge be destroyed by inevitable accident, it would not be contended the carrier would be discharged from liability. In Fulkerson v. Eads (supra), the contract was to break out a certain' piece of ground in the month of August; a drouth made-it impossible to do so. The parties, doubtless, contemplated the possibility of the performance, yet this court: held defendant liable for damage. If the law was that' a school could only be. taught in the school house in existence at the time of the contract, then the assumption of the majority of the court that the contract was limited by an implied condition that the school house should remain undestroyed would be correct. For the contract would be with reference to the law. But if such is not the law, then such is not the condition. In many parts of the state, especially in villages, the school house is not large enough to accommodate the pupils and additional houses are rented. In such case what is the implied condition in the contract? It is quite common to rent a school house during the erection of a new one. It frequently happens that a new and more commodious school house will be erected by a school district in lieu of one which might well serve the purpose for a longer time. ' If the new one is burned down, leaving the old one intact, would it be contended that th'e directors could prevent the teacher recovering his wages because the building in which the parties contemplated the school would be taught was destroyed, although the other remained in every way suitable for the purpose ? If it were unlawful for directors .to use but the one building as before stated, if it were unlawful for them to rent, or to accept of another building without rent; if it were unlawful for them to rebuild immediately, as in some instances they might do, then we might properly *226assume the contract was with reference to the one building. As the law is, I can conceive of no special sanctity of any particular building in which a district school must be taught.
The citations in the majority opinion are not, in my judgment, applicable to this case. This case falls within the rule as quoted above. Dewey v. The Union School District, 43 Mich. 480. In that case the directors were 'compelled to close the school on account of the prevalence of small-pox. They refused to pay the teacher for the period not taught by him. He brought suit and recovered. The court says: “Beyond controversy the closing of the school was a wise and timely expedient; but the defence interposed cannot rest on that. It must appear that observance of the contract by the district was caused to be impossible by act of Hod. * * * The contract between the parties was positive and for lawful ■objects. On one side school buildings and pupils were to be provided, and on the other personal service as teacher. * * * Admitting that the circumstances justified the officers, and yet there is no rule of justice which will entitle the district to visit its own misfortune upon the plaintiff. * * * It was the misfortune of the district, and the district and not the plaintiff ought to bear it. The occasion which was presented to the district was not within the principle contended for. It was not one of absolute necessity, but of strong expediency. To let in the defence that the suspension precluded recovery the agreement must have provided for it, * * * and the contract cannot be regarded as tacitly subject to such condition.”
II. As to the third branch of the case, I agree that the teacher should have made his report for the half month taught by him. It would seem from plaintiff’s first instruction, that judgment was tendered or offered for the half month taught, yet no such offer appears in the record and we must take it that such was not the case, however the actual fact may have been.
*227As to the period not taught, I am of the opinion the monthly report was not a condition precedent to plaintiff’s recovery. There was nothing to report. Revised Statutes, section 7079, providing for such reports, says he must report the number of pupils in attendance during the month, distinguishing between male and female, and such other statistics as may be required. But the defendant has prevented this by its own act. The defendant has not furnished the subject matter for such report. Section 7071 provides that no order shall be given for any teacher’s wages who is “ delinquent in his monthly or term report.” Delinquency is a failure of duty, and implies voluntary conduct, but here the failure is by the fault of defendant and of which it should not be permitted to take advantage.