the Court below, Sutton v. Spectacle Makers' Co., 10 L. T. N. S. 411; Diggle v. London & Blackwall Railway Co., 5 Ex. 442; Crampton v. Varna Railway Co., L R. 7 Ch. 562; Governor & Company of Copper Miners v. Fox, 16 Q. B. 229; Appleby v. Myers, L. R. 2 C. P. 651; Taylor v. Caldwell, 3 B. & S. 826; Chamberlain v. Trenouth, 23 C. P. 497; Anglo-Egyptian Navigation Co. v. Rennie, L. R. 10 C. P. 271, were referred to.

September 16, 1882. The judgment of the Court was delivered by

OSLER, J. We see no ground for disturbing the judgment of the learned Judge of the County Court setting aside the nonsuit, and granting a new trial, on any ground taken before him, or in the printed reasons of appeal. We cannot say that the contract on which the plaintiff relies is not one which may be perfectly valid although not under the corporate seal of the defendants; and had that been the only question before us, we should have said that the learned Judge had properly set aside the nonsuit in order that further inquiry might be made on the points indicated in his judgment.

An objection was, however, taken for the first time by Mr. Lash on the argument which is clearly open on the pleadings and evidence, and goes to the root of the plaintiff's case.

The action is on the common counts for work and services; but the plaintiff's evidence shews that his real claim is for damages for breach of a special contract. The agreement, as the plaintiff' states it, was, that he should be employed as master of the steamboat Idyl- Wyld, for the season of 1877, and should be paid one thousand dollars for the season. This was in March. The season commences early in May, and ends in November. The plaintiff remained in the defendants' employment until the month of August, when the vessel was burnt.

It is now contended that the destruction of the vessel

has put an end to the contract, and to any right of the plaintiff to recover further remuneration. He has already been paid a sum of $832, or thereabout, which would more than cover the proportionate part due, if it was due, for the period of his actual employment, but this the defendants do not seek to recover.

We understand Mr. Murray to admit that he cannot hope to maintain his action in respect of a demand of any other nature, and the particulars of claim in the action indicate that this is the only claim the plaintiff relies on. There is, therefore, no reason for sending the case down again if on this state of facts it appears that he cannot recover.

We think the authorities shew that on such a contract as the one in question the continued existence of the vessel is in the contemplation of the parties, and the contract is subject to an implied condition that they shall be excused in case before breach performance becomes impossible from the perishing of the thing without the default of the contractor. The plaintiff's services were to be rendered as the master of this particular vessel, not generally as master of any vessel in the employ of the defendants, and the case is, in our opinion, clearly within the principle acted on in Taylor v. Caldwell, 3 B. & S. 826, and that class of cases. There A. agreed with B. to give him the use of a Music Hall on certain specified days for the purpose of holding concerts, with no express stipulation for the event of the destruction of the building by fire. A fire occurred by which the hall was destroyed before any breach of the contract, and it was held that both parties were excused from its performance. Blackburn, J., in delivering the judgment of the Court, after commenting on the authorities, says, at p. 839: "The principle seems to us to be that, in contracts in which the performance depends on the continued existence of a given person or thing, a condition. is implied, that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance."

Here, for the reason already given, the parties must have

contemplated the continued existence of the vessel, to sail and manage which the plaintiff was employed, and we think its destruction put an end to their contract.

I have referred to several of the cases bearing on the point in the recent case of Boswell v. Sutherland, 32 C. P. p. 131. See also Anglo-Egyptian Co. v. Rennie, L. R. 10 C. P. 271.

We think the appeal must be allowed, but as the point on which we allow it was raised for the first time on the argument, we do so without costs.

Appeal allowed.

BENNETT V. THE GRAND TRUNK RAILWAY COMPANY.

Collision at crossing-Contributory negligence.

The servant of the plaintiff was in charge of an omnibus running to and from the station of the defendants' railway, and on the evening in question was attending at Georgetown station, at about ten feet from the track, but was unable to see along the railway in either direction by reason of houses intervening. By leaving the omnibus, however, and going to the track he could have seen an approachimg train; but omitting to take this precaution, although aware that a freight train was then on the track near the crossing, he started off to cross it, and did not hear or see anything of the approaching train until within about four feet of him, when he was unable to avoid it, and the 'bus and harness were considerably damaged. It was not shewn that the driver of the train had given any warning of its approach by sounding the whistle or bell on its nearing the part of the track where it crossed the road to the station. At the trial the plaintiff was nonsuited on the ground of the contributory negligence of the plaintiff's servant. Held, on appeal, reversing the judgment of the County Court, that the question of contributory negligence had been improperly withdrawn from the jury, and that a new trial must be had in order to submit that question to them.

Appeal from the County Court of Halton, discharging an order nisi for a new trial.

The action was one for running down the plaintiff's horses and carriage, by collision, at a highway crossing, with defendant's train.

The defendants pleaded not guilty," as in the said declaration alleged, by Consol. Stat. C. ch. 66, sec. 83, public Act.

The cause came on to be tried before his Honor Judge Miller, with a jury, when a verdict was rendered for the plaintiff, and $110 damages. The defendants moved for and obtained an order granting a new trial, costs to abide the event.

The case was again tried before the same Judge at the December Sittings, 1881, at Milton, with a jury, and a nonsuit was entered on the ground of contributory negligence on the part of the plaintiff's servant. Leave was reserved to move for a new trial, his Honour remarking that he was not clear but that the proximate cause of the damage complained of was the defendants' neglect.

The plaintiff thereupon obtained a rule nisi to set aside

such nonsuit, which, after hearing counsel, his Honour discharged, on the grounds that the negligence of the plaintiff's servant was the proximate cause of the accident, and that there was no evidence to go to the jury.

From this judgment the plaintiff appealed to this Court, on the following grounds:

1. That the nonsuit entered was against law and evidence. (2) That there was evidence of negligence on the part of the defendants to go to the jury: Jones v. Grand Trunk R. W. Co., 45 U. C. R. 193; Williams v. Great Western R. W. Co., L. R. 9 Ex. 157; Gee v. Metropolitan R. W. Co., L. R. 8 Q. B. 161-175; Clayards v. Dethick, 12 Q. B. 439; Marriot v. Stanley, 1 M. & G. 568; Shields v. Grand Trunk R. W. Co., 7 C. P. 111; Tuff v. Warman, 5 C. B. N. S. 573; Tyson v. Grand Trunk R. W. Co., 20 U. C. R. 256; Vars v. Grand Trunk R. W. Co., 23 C. P. 143; Davies v. Mann, 10 M. & W. 546; Anderson v. Northern R. W. Co., 25 C. P. 301; Ryder v. Wombwell, L. R. 4 Ex. 32; Bilbee v. London and Brighton R. W. Co., 18 C. B. N. S. 584; Dublin, &c., R. W. Co. v. Slattery, L. R. 3 App. Cas. 1155; Weller v. London and Brighton R. W. Co., L. R. 9 C. P. 126; R. S. O. ch. 165, sec. 3, sub-sec. 6, secs. 92 and 93; Consol. Stat. C. ch. 66, sec. 6, sub-sec. 12, secs. 104, 144, and 145. (3) That there was no contributory negligence on the part of the plaintiff, or at least not such contributory negligence as should warrant the action being withdrawn from the jury, and entitle the defendants to a nonsuit, or prevent the plaintiff recovering damages. (4) That the proximate cause of the damage complained of was the negligence of the defendants: Flower v. Adam, 2 Taunt. 314; Williams v. Holland, 10 Bing. 112; Vennal v. Garner, 1 C. & M. 21. (5) That the question of negligence and contributory negligence is a question for the jury: Walton v. County York, 6 A. R. 181; Haldan v. Great Western R. W. Co., 30 C. P. 89; Metropolitan R. W. Co., v. Jackson, L. R. 3 App. Cas. 193; Bridges v. The North London R. W. Co., L. R. 7 H. L. 213; Jewell v. Parr, 13 C. B. 909.