Performance by a vendor of an absolute and unconditional agreement to sell and deliver daily at his farm a certain number of quarts of milk of a specified quality, is not excused nor rendered illegal merely because his cattle and all the products of his farm are afterward quarantined, if the contract does not require that the milk shall be produced on the farm or from any particular stock.
SHUMWAY, J.
This was an absolute and unconditional undertaking by the defendant to sell and deliver milk daily, of the specified quality and amount. The defendant's claim is that he was excused from the performance of the contract by reason of the quarantine, which made it illegal for him to leave his premises and carry away any products of his farm or any articles that might carry infection. The quarantine order did not make it illegal to deliver milk, nor make it illegal for the defendant to procure its delivery. This much is conceded.
But the defendant contends that the clause in the contract, to wit, "The said Whitman is to come and get the milk at No. 1 Wawarme Avenue," is an essential part of the contract, and as delivery was to be made at the place named, therefore delivery under the terms of the contract was illegal. There is nothing in the record to show that the defendant could not perform his contract. While it may be true that the plaintiff could not enter the defendant's house or go upon other parts of the premises which were under quarantine, it does not follow that the contract could not be performed substantially if not literally. The contract was not to deliver milk produced on the premises. All that can be said is that the defendant was under a temporary disability to perform his contract. He is not, however, released from the obligations of his contract because it was difficult or impossible to perform them, so long as the performance was not illegal. School District No. 1 v. Dauchy, 25 Conn. 530; Worthington v. Charter Oak Life Ins. Co., 41 Conn. 372, 401.