(dissenting). — While being afflicted with a loathsome venereal disease is suffered to be a complete defense to breach of promise, it has been understood always that this rests on a narrow exception engrafted upon the law of contracts; understood that such exception is not worked by tenderness to the defendant, but by reasoning, that it will be a less evil to permit him to take advantage of his own wrong than to press him into a marriage which will offend public policy. The majority has extended the exception to what is not within the reason for the extension — to pernicious anemia, which, while surely fatal, and usually so within a year, is neither infectious, contagious nor transmissible. This exception is not enlarged on considerations of public policy, but on the ground that, if performance of a contract will be injurious to one party to it, neither performance nor damages may be exacted of him. In my opinion, this violates both reason and authority. Cesscmte ratione legis, cessat ipse lex, is disregarded. It, therefore, is not surprising that the opinion of the majority proves to be much more a strenuous effort to find reasons for a desired conclusion than the statement of a conclusion compelled by reasoning.
In Broom’s Legal Maxims (7th Ed.), #page 251, it is said:
“To a declaration for breach of promise of marriage, a plea that after the promise, and before breach, the defendant became afflicted with disease, which rendered him ‘incapable of marriage without great danger of his life and, therefore, unfit for the married state’ was recently held bad, in accordance with the general rule that a man who has voluntarily contracted shall either perform his contract or pay damages for breach of it, the plea, moreover, not showing an impossibility of performance. ”
Addison on Contracts, the' great English authority, at page 1315 (11th Ed.), says:
“If,.subsequently to the making of a contract to marry, one of the parties by bodily disease becomes unfit for the per*148formanee of the most important duty of marriage, the party so unfitted is not thereby entitled to treat the contract as dissolved, the other party still desiring its performance. But the latter may break off the engagement; for if a man, by disease or mutilation, becomes impotent, he could never maintain an action against a woman for refusing to marry him. ’ ’
For this, he cites Hall v. Wright, El. Bl. & El. 746, decided in Exchequer Chamber, reversing a contrary decision below. This case fully sustains the text. In it, the following plea was held to present no defense:
“That defendant after the promise and before the breach, became afflicted with disease occasioning bleeding from the lungs, and by reason of such disease became incapable of marriage without great danger to his life, and, therefore, unfit for the marriage state.”
Willes, J., in speaking of the contract, said:
‘ ‘ Its performance is not impossible; and it is not enough to show, in answer to an action upon a contract, that its performance is inconvenient or may be dangerous. The delicacy of health, alleged as an excuse, is the man’s misfortune, not to be visited, beyond what is inevitable, upon the woman. If either party is to have the option of breaking off the match, it ought to be the woman. The court has no right to say what is best for her. If the man were rich or distinguished, and the woman mercenary or ambitious, she might still desire to marry him for advancement in life. I do not sympathize with such a woman, if any there be, but this is not a question of sentiment. If it were, I might put the ease of a real attachment, where such an illness as that stated in the plea supervening might make the woman even more anxious to marry, in order to be the companion and the nurse, if she could not be the mistress, of her sweetheart.”
Crowder, J., said:
“But I am of opinion that it is no excuse for a breach of promise to marry, that the performance of the conjugal *149duties would be attended with danger to the defendant’s life. Such a state of illness may make it matter of the greatest prudence on his part to break his contract, and to pay such damages as a jury may award against him for the breach. But, in my opinion, it is no legal answer to the action.”
Boast v. Firth, relied on by the majority, so far from sustaining the opinion, is affirmatively against it. It says (4 L. R. 4 C. P. [1868], at page 8) :
“In the case of a contract to marry, the man, though he may be in a bad state of health, may, nevertheless, perform his contract to marry the woman, and so give her the benefit of social position so far as in his power, though he may be unable to fulfill all the obligations of the marriage state; and it rests with the woman to say whether she will enforce or renounce the contract.”
Hall’s case was expressly approved in Smith v. Compton, (N. J.) 52 Atl. 386. There the contention was that defendant had a complete defense because, without his fault, he, after promise, contracted or developed a urinary disease which kept him under treatment, and which would be aggravated by sexual intercourse and thus be an imminent hazard to his life.
On appeal, Justice Van Syekle said:
“I agree with the declaration of the majority of the judges in Hall v. Wright, that it is not enough to show in answer to an action upon the contract, after breach, that its performance is inconvenient or may be dangerous. Impossibility to perform will alone constitute an absolute bar. Ill health is the defendant’s misfortune, not to be visited, beyond what is inevitable, upon the plaintiff. If the plaintiff was willing, in view of his social position, or that which she might acquire by reason of his wealth, to marry him, and await his restoration to health, she had the right to insist upon the benefit of the unconditional contract. If he was apprehensive' *150of danger to his health or life, he could break the engagement, but was subject to such damages as a jury would award against him for the breach. That would, in effect, be a substituted performance in discharge of the obligation incurred. This is in consonance with the well-established rule which governs contracts, and, unless it is adhered to, the loss falls upon the party to whom no fault can be imputed.”
The majority attempts to avoid these direct and palpably sound authorities by stating that the tendency of the “later cases” is against Hall v. Wright. The “later cases” consist of the one case of Sanders v. Coleman, (Va.) 34 S. E. 621, in which, on identical plea of urinary disease, a conclusion opposite to that of Smith v. Compton, supra, is reached.
It is sufficient comment upon the Sanders case that its only citations are the Shackleford case and the Allen case.
As to Shackleford v. Hamilton, (Ky.) 15 L. R. A. (O. S.) 531, it is the fact, and the opinion itself shows it to be the fact, that it was decided wholly on the ground that the marriage of a syphilitic might have such consequences as that public policy will permit that that disease be urged as a complete bar to a promise to marry. While it, in a way, approves a statement in a dissent by Erie, J., in Hall v. Wright, supra, an examination will show that even this much, which is said merely arguendo, deals with the rights of the party not breaching.
While Allen v. Baker, 86 N. C. 91, has an abundance of rhetoric and language which, if broadly accepted, makes any disease a complete defense, it suffices to say that it, too, involves “a loathsome disease, incurable in fact, and of such a nature as to render him unfit to enter the marriage relation with anyone;” and that its ultimate conclusion is:
“We cannot understand how one can be liable for npt fulfilling a contract when the very performance thereof would in itself amount to a great crime, not only against the individual, but against society itself.”
*1512.
The “support” of the Sanders ease which the majority marshals, is remarkable. The Shackleford and Allen cases have been discussed. Grover v. Zook, (Wash.) 87 Pac. 638, which the majority thinks supports the Scmders case, cites the Shackleford case. The Zook case itself is decided wholly upon the ground that consumption is a complete defense because it is highly infectious and transmissible, and the ruling, once more, is put wholly upon the grounds of public policy. The only support it affords to the claim of the majority that aggravation of a disease which defendant has would justify his breach of promise is the remark that, “in addition to the thought of progeniture, there would be also that of the aggravation of the disease as to both himself and prospective wife, the medical experts showing that the intimate association of married life would tend to augment the ravages of the malady upon each.” To make plain that this is merely incidental argument instead of the decision in the case, it is only necessary to examine the citations, which are Ryder v. Ryder, (Vt.) 28 Atl. 1029; Atchinson v. Baker, 2 Peake 103, and Trammell v. Vaughan, (Mo.) 59 S. W. 79 — which last case, the majority relies on affirmatively. It holds that discovery that defendant was afflicted with contagious venereal disease entitled him to postpone the marriage for a reasonable time, whether or not plaintiff, with knowledge of his condition, was willing for the marriage to take place.
Beans v. Denny, 141 Iowa 52, involves the rights of the party who is not diseased, and the nearest it comes to touching the ease at bar is in its statement that one is excusable for declining to carry out the promise of marriage where the other party is afflicted with an incurable venereal disease, unless the promise was made with knowledge that the other party had such disease. The other cases relied on by the majority are the following, and seem to be utterly irrelevant:
*152Vierling v. Binder, 113 Iowa 339, is that where the defendant pleads he did not engage to marry because of physical condition of the plaintiff at the time when it is claimed he did make such engagement, he cannot show that she had these ailments at the time of the trial of her action for breach. Gring v. Lerch, 112 Pa. St. 244, holds it to be a valid defense to the action that the woman was unable to have sexual intercourse, and, although she promised to submit to a surgical operation to cure the difficulty, refused to do so. All that is decided by Goddard v. Westcott, (Mich.) 46 N. W. 242, is that plaintiff may be asked, on cross-examination, whether she had told certain persons she had a tumor, for the purpose of showing that she was not capable of making or carrying out the contract at the time inquired into, without fraud or injury to the defendant.
3.
It seems to have been apprehended that the weight of direct ease law is not with the opinion, and a labored attempt is made to fortify it with “Act of God” law, and the general principles that govern mutuality of contract and failure of consideration. To make use of the act of God cases, the majority is obliged to assume certain facts erroneously, to make unsound deductions from what is assumed, and to misapprehend what “Act of God” is, in law. To make this plain, one need but point out that the opinion inquires whether death before breach would not be a complete defense, and answers that it would. This is true, but true because all the cases hold that that only is an act of God which makes any performance impossible. Death does that. As to the cases upon which the opinion relies—Robinson v. Davison, Law Reports, Vol. 6, Ex. 269, and the cases therein cited (and cited also by the majority), to wit: Dickey v. Linscott, 20 Me. 453; Fenton v. Clark, 11 Vt. 557, Spalding v. Rosa, 71 N. Y. 40, and Green v. Gilbert, 21 Wis. 401—each and all of them in some form or other involve the proposition that, if one agree to perform *153personal labor or services which cannot be done by deputy, and become too ill to perform, he is excused. Certainly. Where one agrees to do labor, and, without fault of his, sickness makes it impossible for him to labor, there is a case which is in principle the equal of death. The law on this head is in no confusion. Dewey v. Union School District, (Mich.) 5 N. W. 646, 647, and Gear v. Gray, (Ind. Appellate) 37 N. E. 1059, declare that the performance of a contract will only be excused as being prevented by the “Act of God” when there are intervening circumstances which render performance impossible, and not when they only make it difficult and undesirable; and hence the suspension of a school by reason of an epidemic of a contagious disease does not defeat the right of a teacher to compensation under his contract.
In Ringeman v. State, (Ala.) 34 So. 351, sureties on a bail bond pleaded on a judgment nisi that, after the execution, the principal was so ill of consumption that it became necessary to the preservation or prolongation of his life for him to go to another state; and that, at the time a forfeiture was taken, a return could not have been made without serious detriment to his health, nor without imminent danger to his life. It was held a bad plea because it did not aver impossibility of appearance by the principal resulting from an act of God; and that, while his death in such ease would have been the act of God in legal contemplation, illness, however severe and critical, is not. In support, the case cites Cain v. State, 55 Ala. 170; State v. Crosby, (Ala.) 22 So. 110; 3 Am. & Eng. Encyc. of Law 717; Taylor v. Taintor, 16 Wall. 366; Piercy v. The People, 10 Ill. App. 219; Devine v. State, 5 Sneed (Tenn.) 623, and Scully v. Kirkpatrick, (Pa.) 21 Am. Reports 62, 64.
Not a case may be found in which vis major is applied to anything short of utter inability to perform, at all. That it may not be in the very case at bar is squarely held in Broom’s Legal Maxims, Addison’s Contracts, Pollock’s Contracts, and Boast v. Firth, relied on by the majority, and in Hall v. *154Wright, and Smith v. Compton. These demonstrate that “Act of God” has no application where performance is not rendered impossible. To avoid them the majority is forced to reason thus: (1) Act of God is a complete defense because it makes any performance impossible; (2) a fatal disease is an act of God; (3) defendant had such disease; (4) therefore, it was impossible for him to marry, and he is excused.
It is manifest, the opinion was compelled to assume that his disease made performance by defendant impossible. This assumption counters the testimony adduced for defendant, including Dr. Patty, who said: “ I do not mean to say he was unable to stand up and go through a ceremony of marriage. ’ ’ It assumes what is contrary to reason and common knowledge, and is against all the authorities that speak to the point, including those upon which the majority relies. See the authorities last referred to. It cannot be conceived how the mere going through the ceremony can have such or much effect on health or life — or though one be in never so parlous a state of health why he is incapable of becoming married.
The majority inquires whether, in the extreme case of a demand for performance, when the other party is immediately to die, and the ceremony involves “in it great peril to life,” there should be a recovery. It is an extreme case, and the question might well be answered by asking whether, if death be certain, though a year away, performance would be excused; for the two cases involve nothing but a difference in degree. But even as to the extreme case suggested, it can be said, in the first place, that the going through the ceremony cannot involve great or any other peril to life; that cases do occur in which the man, though mortally wounded and about to expire, has insisted upon giving his name and the right of inheritance to the woman whom he had promised to marry; and that the situation presents no more than matter in mitigation. In such circumstances, the recovery would not be large, but that is ño good reason for departing from the sound rules of the law of contracts. Better that recovery should be allow*155able in any case than to disturb salutary elementary rules which prohibit a breach of contract based on the desires or convenience of the one repudiating.
4.
Realizing, no doubt, the weakness of argument based on the “impossibility” or injuriousness of going through the ceremony, it is insisted that marriage means more than being one party to the marriage service, and that marriage is “impossible” whenever one party is unable to respond to all that marriage means or should mean. This reasoning can be supported only by the application of general rules governing mutuality in contracts, or by assuming that the rearing of children is of itself the consummation of marriage, and its sole constituent. This last overlooks consortium, the privilege of bearing the name of the man, of being endowed with his social standing, and of the right of inheritance. Followed to the bitter end, any who are above a certain age may freely breach a contract to marry because there could be no offspring from their marriage. As the opinion itself shows, Pollock declares that impossibility of performance as applied to breach of contract to labor by reason of sickness has no place here, because to apply it would be “against the common understanding of mankind, and the general treatment of marriage by English law according to which the acquisition of legal or social position by marriage is a principal or independent object of the contract,” and (Contracts, 3rd Ed., page 546) though defendant may be unable to fulfill all the obligations of the marriage, it rests with the woman to say whether she will enforce or renounce the contract — all of which amounts to saying that there is no impossibility of performance, as the law understands the term, merely because children are impossible. In Boast v. Firth, relied on by the majority, it is said that the contract to marry may be performed despite bad health, because the sick man can “give *156her the benefit of social position so far as in his power, though he may be unable to fulfill all the obligations of the marriage state.” In Grover v. Zook, also relied on by the majority, “the thought of progenitura” is treated as but one elément, and the defendant is excused, not on that account, but because his pulmonary consumption made the marriage one against public policy. It has already been presented by the illustration of an agreement to marry entered into by very old people, and by death-bed marriages insisted upon by the one dying, that marriage on part of one who is mortally ill is not impossible, and that marriage involves more than children.
5.
The theory of failure of consideration is not persuasive, either. This is the first time it has been invoked for the one who is miable to furnish full consideration. It involves a confusion of the parties. The woman might well refuse to marry because the condition of the man was such that his marrying her would furnish no consideration for her promise to marry him. Reversing this leads to the remarkable result that one who has agreed to furnish certain things, and is unable to furnish them, or some of them, may plead a failure of consideration, and say that, because he can furnish only half of what was agreed upon, that then, though the other party is satisfied with half, he need not perform at all, because he cannot furnish all. Such reasoning overlooks that where there may be a part performance, and the one able to perform fully is willing to waive full performance by the other, it does not lie in the mouth of the one who is in default to complain. Take the illness cases before adverted to. There would be a wholly different ruling if one agreed to do copying in an office and also to sweep the office, and it transpired he was too ill to do the sweeping, but able to do the copying, and the employer was willing to accept copying as full performance of the contract. The employer might well *157refuse to perform if the other could not do all that was contracted for. But the opinion turns this round, and excuses one from doing what he can do, because it is less than he agreed to do, even though the other party is willing to accept the shortage.
Boast v. Firth, supra, involves inability to perform labor agreed to be performed, because of permanent sickness, and holds such illness to be an excuse; but it distinguishes Hall v. Wright, supra, by pointing out that, while the apprentice in the Boast case could not perform, on contract to marry, the man, though he may be in a bad state of health, may perform to some extent, and he may not avail himself of his disability, if the woman is willing to accept part performance.
One can understand how, on the reasoning of the majority) a young woman who had agreed to marry an octogenarian might decline performance on the ground that there was no consideration for her promise; but it is beyond me to understand how the old man can interpose such plea to excuse performance on his part, when the other party remains willing.
“Where the malady is of such a fatal character that he cannot enter into the marriage relation and receive any of the benefits which grow out of and are involved in the relationship established by the consummation of the marriage, he is excused,” says the majority. And, if “either party is rendered incapable of giving that which the contract calls for, the other party may repudiate the agreement . . . because of the failure ... of the consideration upon which the promise rests.” And, one may “refuse to perform when, by the act of God, he has become wholly incapable of receiving any of the consideration.” Is the majority prepared to follow this where it may lead ?
If one have spectacles fitted and immediately thereafter become blind, is he excused from paying for the work and the glasses because an act of God has made them of no use to him? Will the amputation of both feet after ordering boots absolve from payment? If one ordered lemons, and, *158by the time they reached him in due course of transportation, he found himself suffering from some disease of the throat that would make it agony for him to use the lemon juice as he had intended, it would follow, on the reasoning of the majority, that he could refuse to pay.
6.
The majority says:
“If the woman may repudiate the contract because the man has become by the act of God in such a condition physically as to render him incapable of giving to her all that, under the consummated contract, she is entitled to, then the man may, the contract being mutual, refuse to perform when, by the act of God, he has become wholly incapable of receiving any of the consideration which the consummated contract entitled him to. One cannot give to another that which the other is wholly incapable of receiving. ’ ’
This overlooks all that has just been said, and holds that, because one who has the right to repudiate chooses to waive that right, the other is thereby authorized to repudiate. So far as the doctrine of the mutuality of contracts is applicable, the eases do apply it. Either may defend on the ground that his or her disease is such that performance would violate public policy. To go beyond this is to apply one of the exceptional rules in specific performance to the case of this contract.
There is a rule in specific performance that one who was himself unable to perform when the contract was made cannot have this particular remedy, even though he becomes able to perform before he brings action. Luse, v. Deitz, 46 Iowa 205; Richmond v. Dubuque & S. C. Railway, 33 Iowa, at 486. Self-evidently, this rule can have no application in any case where the court is without power to compel specific performance. A marriage is manifestly one of the things that may not be compelled by court order. Consequently, that one is not bound to marry a plaintiff who is sick does not make a *159law rule that, where plaintiff is willing to marry a defendant, though sick, such defendant may break his contract because he is sick.
If one can conceive the inconceivable case of a promise to marry being brought into chancery on application for specific performance, then, the granting of the relief being discretionary, it might well be that, in a case where performance would entail physical danger to the party in default, the chancellor would use his discretion and relegate the one not in default to some remedy other than specific performance. But here, the essential position of the defendant is that, because it will work an injury to him and him alone, — because, if he kept his promise, the consortium he could give would be of less value than if he were well, therefore the party not in fault is entitled to no relief.
I would reverse on the appeal of defendant.