(concurring). This is an appeal from a judgment on a verdict for $775. The plaintiff is one of four persons who made similar contracts to drive a school conveyance for the school year *450commencing in September, 1918, to convey teachers and children to and from the school. The plaintiff sues for a breach of his contract and for a breach of the other contracts, claiming under an assignment from the other drivers. The complaint avers that the plaintiff and the other drivers were duly paid for their services during the first two weeks, from September 23 to October 5, 1918, and from January 6 to the end of the school year. But for an interim of thirteen weeks, from October 1, 1918, to January 3, 1919, during which time the school was closed and no services rendered, the defendant refused to pay. The complaint does not aver that during said thirteen weeks the drivers performed any services or did a single thing under the contract.
As the record shows beyond dispute, the drivers were fully paid for all services actually rendered, but that they were not paid for the thirteen school weeks during which the school was closed and during which time they claimed to have stood in watchful waiting for the school to open. As shown by exhibit A and the oral testimony, the school was closed pursuant to an order promulgated by the county board of health. The order directs the school board to close all schools and places of public amusement, saying: “This is not only a board of health measure, but it is the substance of a telegram received by the state board of health from the Surgeon-General at Washington. It is therefore a war measure.” The court will take judicial notice of the fact that the flu was a very infectious and fatal disease, and that it prevailed to an alarming extent over the state and the nation. The order was fully authorized; the closing of the school was compulsory. Indeed, it was an act of God, and the drivers had due notice of the closing as well as the opening of the school. There was no occasion for any watchful waiting. When the time came for the opening of the school, the drivers were notified and resumed the work and accepted their monthly pay without protest. As the answer avers, during the thirteen weeks the drivers rendered no services whatever. The school was closed by order of the county board of health and because of the prevalence of the flu. The defendant school district was not responsible for the epidemic or the closing of the school. “No man is responsible for that which no man can control.” Comp. Laws, § 1260. And, except as given by statute, the school board had no power to contract for the conveying of pupils to and from the school. The board had no power to *451contract for the payment of drivers at a time when the school was closed and when the drivers could not possibly render any services. Hence, on the undisputed facts, the action should be dismissed.
But the court instructed the jury that if the drivers at all times held themselves in readiness to perform under the terms of the contract, and were prevented from so doing by reason of the action of the board, then they were entitled to recover the full amount claimed in the complaint, $775, and that it made no difference that the school was closed by order of the board of health on account of the epidemic. The instruction is clearly erroneous. The closing of the school was by compulsion and by act of G'od, and not by any action of the defendant. If the closing was rightful, as it was, the defendant was not liable. If the closing was wrongful, then the district would be liable for a breach of its contract. However, the instruction was clearly erroneous. It holds, in effect, that when a contracting party holds himself in readiness to perform a contract, it is the same as performance. Under such a rule a person contracting to build a house for $5,000 might recover the contract price without doing a thing, if he only held himself in readiness to perform and the other party forbade performance. But such is not the law. If the board wrongfully closed the school, if it wrongfully prevented the drivers from performing the services under the contract, then the statute gives the measure of damages thus: “The amount that will compensate the party aggrieved for all loss proximately caused by the breach of the contract, or which in the ordinary course of things would be liable to result therefrom.” Comp. Laws, § 7146. And “damages must in all cases be reasonable.” § 7183. In this case plaintiff sues to recover for the breach of contract, and not for services actually rendered. He sues to recover on each of the four contracts for thirteen weeks of idleness. He wants pay for fifty-two weeks or one year of doing nothing. Of course that is not reasonable; it is grossly unconscionable. It seems like an attempt to hold up and rob the defendant of $775 under the forms and technicalities of the law. If the defendant had legal capacity to hire the drivers to do nothing for thirteen weeks and then wrongfully discharged them and prevented the performance of the contract, the liability is the same as that of a farmer hiring help to work on a farm and discharging the help before the time. In all such cases the liability is *452for the proximate loss. If a man is hired to serve for a year, and is at once recalled or discharged without cause, his proximate loss is the difference between the contract wage and that which he may earn during the year. He cannot pass a year in idleness and collect for it the same as if ho had been faithfully at work.
Then there is another rule that a contract must be binding on both parties, or neither is bound. If the drivers were not legally bound to serve, and if they had a right to jump the contract, the school district had the same right, and under the statute, if constitutional, any person, whether singly or in concert, may at any time terminate any relation of employment or labor, and even persuade others to do the same. Laws 1919, chap. 171. And it is generally known that as a rule employees no longer consider contracts for services or labor binding on them. They feel free to jump and disregard any such contract. In this case the question is: Did the school board make with the drivers a valid and binding contract to pay them for services during the thirteen weeks of idleness whether school kept or not, and to pay each of them for thirteen weeks of idleness and doing nothing while the school was closed without any fault of the school board ? As I maintain, the school board made no such contract. It had no legal right to make it. The school was closed by compulsion, and no man is responsible for that which no man can control. Comp. Laws, § 7260. The drivers have had pay for their work, and this court should not aid them in holding up the school district. Hence the action should be dismissed.