^i»  Spalding  v.  Rosa  (1877),  71
N.  Y.  40.  Allen,  J.:  "Contracts
of  this  character,  for  personal
services,  whether  of  the  con-
tracting party  or  of  a  third  per-
son, requiring  skill,  and  which
can  only  be  performed  by  the
particular  individual  named,  are
not,  in  their  nature,  of  absolute
obligation,  under  all  circum-
stances. Both  parties  must  be
supposed  to  contemplate  the
continuance  of  the  ability  of  the
j)erson  whose  skilled  services  are
the  subject  of  the  contract,  as
one  of  the  conditions  of  the  con-
tract. Contracts  for  personal
services  are  subject  to  this  im-
plied condition,  that  the  person
shall    b«'   able   at   the   apixjinti-d


time  to  perform  them;  and  if  he
dies,  or  without  fault  on  the
part  of  the  covenantor  becomes
disabled,  the  obligation  to  per-
form becomes  extinguished."

This  ca.se  further  holds  that
where  a  theatrical  troupe  is  en-
gaged, it  is  of  the  essence  of  the
contract  that  the  chief  artist
shall  perform.
Glitiseretti  v.  Richards  (Eng.)
(1907),  Times,  Jan.  26th,  pre-
sents the  interesting  question
whether  a  troupe  of  acrobats  can
insist  on  performance  of  a  con-
tract when  some  of  the  acrobats
have  died  or  left  the  troupe  since
the  making  of  the  contract.
However,  this  point  was  not  di-
rectly passed  upon.  See  also:
Ilarvcy  v.  Tivoli,  Manchester,
Ltd.  (Eng.)  (1907),  23  T.  L.  R.
592;  Robi}isoti  v.  Davison  (Eng.)
(1871),L.  R.  6E.\ch.  269.
See  in  this  connection:  Phil-
lips V.  Alhambra  Palace  (Eng.)
(1901),  1  K.  B.  59.  The  death
of  one  proprietor  was  held  not
to  al)rogate  the  contract  with  the
performer,  and  the  contract  was
hold,  as  to  such  proprietors,  not
ix'i-sonal.
