* 523 *Thus, if one party is prevented from fully performing his contract by the fault of the other party, it is clear that the party thus in fault cannot be allowed to take advantage of his own wrong, and screen himself from payment for what has been done under the contract. The law, therefore, will imply a promise on his part to remunerate the other party for what he has done at his request; and upon this promise an action may be brought. (h) So, too, if one party, without the fault of the other, fails to perform his side of the contract in such a manner as to enable him to sue upon it, still if the other party have derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. The law, therefore, generally implies a promise on his part to pay such a remuneration as the benefit conferred upon him is reasonably worth; and to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable. (i) (h) Planchè v. Colburn, 8 Bing. 14; Goodman v. Pocock, 15 Q. B. 576; Hall v. Rupley, 10 Barr, 231; Moulton v. Trask, 9 Met. 577; Hoagland v. Moore, 2 Blackf. 167; Bannister v. Read, 1 Gilman, 92; Selby v. Hutchinson, 4 id. 319; Webster v. Enfield, 5 id. 298; Derby v. Johnson, 21 Vt. 17. So, too, if a special action on the case is brought against the party in fault to recover damages for not being permitted to perform the contract, a reasonable compensation for what has been performed may be included in the damages. Goodman v. Pocock, 15 Q. B. 576; Derby v. Johnson, 21 Vt. 18; Clark v. Marsiglia, Denio, 317. (i) The cases bearing upon the last proposition are, it must be confessed, very conflicting. They may be conveniently arranged in three classes: those arising on contract of sale; those arising on contracts to do some specific labor upon the land of another, as to erect buildings, or to build roads and bridges; and those arising upon ordinary contracts for service. The leading case of the first class is that of Oxendale v. Wetherell, 9 B. & C. 386. That was an action of indebitatus assumpsit to recover the price of 130 bushels of wheat sold and delivered by the plaintiff to the defendant, at 8s. per bushel. The defendant gave evidence to show that he made an absolute contract for 250 bushels, and contended, that as the plaintiff had not fully performed his contract, he was not entitled to recover anything. But Bayley, J., before whom the cause was tried, was of opinion, that as the defendant had not returned the 130 bushels, and the time for completing the contract had expired before the action was brought, the plaintiff was entitled to recover the value of the 130 bushels which had been delivered to and accepted by the defendant. A verdict was accordingly found for the plaintiff, with liberty to the defendant to move to enter a nonsuit. But, upon a motion to that effect being made, Lord Tenterden said: "If the rule contended for were to prevail, it would follow, that if there had been a contract for 250 bushels of wheat, and 249 had been delivered to and retained by the defendant, the vendor could never recover for the 249, because he had not delivered the whole ' Bayley, J.: "The defendant having retained the 130 bushels, after the time for completing the contract had expired, was bound by law to pay for the same." Parke, J.: Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers part, he cannot, before the expiration of that time, bring an action to recover the price of that part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered, after the seller has failed in performing his contract, the latter may recover the value of the goods which he has so delivered." So also in Reed v. Rann, 10 B. & C. 441, Parke, J., said: "In some cases, a special contract not executed may give rise to a claim in the nature of a quantum meruit, ex g *The particular subject of apportionment of rent has * 524 been considered in the first volume, Book II. ch. 3, sec. 8. where a special contract has been made for goods, and goods sent not according to the contract are retained by the party, there a claim for the value on a quintum valebant may be supported. But then from the circumstances a new contract may be implied." And see, to the same effect, Shipton v. Casson, 5 B. & C. 378. So, too, in Massachusetts it has been held, that if the vendee of a specific quantity of goods sold under an entire contract, receives a part thereof, and retains it after the vendor has refused to deliver the residue, this is a severance of the entirety of the contract, and he becomes liable to the vendor for the price of such part. Bowker v. Hoyt, 18 Pick. 555. And we apprehend that a similar rule would be adopted by a majority of the courts in this country. But in New York, the case of Oxendale v. Wetherell, has been entirely repudiated, and it is there held, that the vendor in such a case is not entitled to any remedy. Cham plain v. Rowley, 13 Wend. 258, 18 id. 187; Mead v. Degolyer, 16 Wend. 632; McKnight v. Dunlop, 4 Barb. 36; Paige r. Ott, 5 Denio, 406; Oakley v. Morton, 1 Kern. 25. And so also in Ohio. With erow v. Witherow, 16 Ohio, 238, Read, J., dissenting. One of the most important cases in the second class is Hayward v. Leonard, 7 Pick. 181. In that case the plaintiff contracted in writing to build a house for the defendant, at a certain time, and in a certain manner, on defendant's land, and afterwards built the house within the time, and of the dimensions agreed on, but in workmanship and materials varying from the contract. The defendant was present almost every day during the building, and had an opportunity of seeing all the materials and labor, and objected at times to parts of the materials and work, but continued to give directions about the house, and ordered some variations from the contract. He expressed himself satisfied with a part of the work from time to time, though professing to be no judge of it. Soon after the house was done he refused to accept it, but the plaintiff had no knowledge that he intended to refuse it till after it was finished. It was held, that the plaintiff might maintain an action against the defendant on a quantum meruit for his labor, and on a quantum valebant for the materials. It may be gathered, however, from the judgment of Parker, C. J., that he considered that one of two things must be proved in order to entitle the plaintiff to recover: either that there was an honest intention to go by the contract, and a substantive execu tion of it, with only some comparatively slight deviations as to some particulars provided for; or that there was an assent or acceptance, express or implied, by the party with whom the plaintiff contracted. That such is now the received law, see Smith v. First Cong. Meeting-house in Lowell, 8 Pick. 178; Taft . Montague, 14 Mass. 282; Olmstead v. Beale, 19 Pick. 528; Snow v. Ware, 13 Met. 42; Lord r. Wheeler, 1 Gray, 282; Hayden v. Madison, 7 Greenl. 76; Jennings v. Camp, 13 Johns. 94; Kettle v. Harvey, 21 Vt. 301; Burn v. Miller, 4 Taunt. 745; Chapel v. Hickes, 2 Cromp. & M. 214; Thornton v. Place, 1 Moody & R. 218; Etna Iron, &c. Works v. Kossuth County, 79 Ia. 40; Beha v. Ottenberg, 6 Mackey, 348; Wells r. Board of Education, 78 Mich. 260; Jordan v. Fitz, 63 N. H. 227; Lawson v. Hogan, 93 N. Y. 39; Gove v. Island City, &c. Co. 19 Ore. 363; Gallagher v. Sharp-' less, 134 Pa. 134. But see Ellis v. Hamlen, 3 Taunt. 52: Sinclair v. Bowles, 9 B. & C. 92; Wooten v. Read, 2 Smedes & M. 585; Helm v. Wilson, 4 Mo. 41; White v. Oliver, 36 Me. 93; Elliott. Caldwell, 43 Minn. 357; Lawing v. Rintles, 97 N. C. 350. We are not aware that there are any cases upon contracts for service fully sustaining the proposition in the text, except the celebrated one of Britton v. Turner, 6 N. H. 481, already cited by us, ante, p. *38, note (k). [Britton v. Turner has been followed in cases upon contracts for service. Duncan v. Baker, 21 Kan. 99; Fuller r. Rice, 52 Mich. 435; Downey v. Burke, 23 Mo. 228: Parcell r. McComber, 11 Neb. 209; Sawyer v. Brown, 17 Neb. 171. See also Steeples v. Newton, 7 Ore. 110.] That was an action of indebitatus assumpsit for work and labor performed by the plaintiff for the defendant, from March 9, 1831, to December 27 of the same year. The The defendant offered evidence to prove that the work was done under a contract to work for one year for the sum of one hundred dollars, and that the plaintiff left his service without his consent and without good cause. learned judge instructed the jury, that although all these points should be made out, yet the plaintiff was entitled to recover, under his quantum meruit count, as much as the labor performed was reasonably worth. And this instruction was held to be correct. Parker, C. J., in delivering the judgment of the court, 641 * 525 *SECTION VI. OF CONDITIONAL CONTRACTS. It is sometimes of great importance to determine whether there be a condition in a contract or an instrument. But after noticing several of the cases cited above in the second class, said: "Those cases are not to be distinguished in principle, from the present, unless it be in the circumstance, that where the party has contracted to furnish materials, and do certain labor, as to build a house in a specified manner, if it is not done according to the contract, the party for whom it is built may refuse to receive it,elect to take no benefit from what has been performed, and therefore if he does receive he shall be bound to pay the value; whereas, in a contract for labor, merely, from day to day, the party is continually receiving the benefit of the contract, under an expectation that it will be fulfilled, and cannot, upon the breach of it, have an election to refuse to receive what has been done, and thus discharge himself from payment. we think this difference in the nature of the contracts does not justify the application of a different rule in relation to them. The party who contracts for labor merely for a certain period, does so with full knowledge that he must, from the nature of the case, be accepting part performance from day to day, if the other party commences the performance, and with knowl edge, also, that the other party may eventually fail of completing the entire term. If under such circumstances he actually receives a benefit from the labor performed, over and above the damage occasioned by the failure to complete, there is as much reason why he should pay the reasonable worth of what has thus been done for his benefit, as there is when he enters and occupies the house which has been built for him, but not according to the stipulations of the contract, and which he perhaps enters, not because he is satisfied with what has been done, but because circumstances compel him to accept it such as it is, that he should pay for the value of the house. . . . If the party who has contracted to receive merchandise takes a part and uses it, in expectation that the whole will be delivered, which is never If, for done, there seems to be no greater reason that he should pay for what he has received, than there is that the party who has received labor in part, under similar circumstances, should pay the value of what has been done for his benefit. It is said, that in those cases where the plaintiff has been permitted to recover, there was an acceptance of what had been done. The answer is, that where the contract is to labor from day to day for a certain period, the party for whom the labor is done in truth stipulates to receive it from day to day, as it is performed, and although the other may not eventually do all he has contracted to do, there has been, necessarily, an acceptance of what has been done in pursuance of the contract, and the party must have understood when he made the contract that there was to be snch acceptance. If, then, the party stipulates in the outset to receive part performance from time to time, with a knowledge that the whole may not be completed, we see no reason why he should not equally be holden to pay for the amount of value received, as where he afterwards takes the benefit of what has been done, with a knowledge that the whole which was contracted for has not been performed. In neither case has the contract been performed In neither can an action be sustained on the original contract. In both the party has assented to receive what is done. The only difference is, that in the one case the assent is prior, with a knowledge that all may not be performed, in the other it is subsequent, with a knowl edge that the whole has not been accomplished. We have no hesitation in holding that the same rule should be applied to both classes of cases, especially as the operation of the rule will be to make the party who has failed to fulfil his contract, liable to such amount of damages as the other party has sustained, instead of subjecting him to an entire loss for a partial failure, and thus making the amount received in many cases wholly disproportionate to the injury. . . . We A condition of this instance, a deed contain a grant on condition, then, if * 526 there be a breach of condition, the grant is void and the estate may never vest, or may be forfeited. sort is not favored, and would not be readily implied. (j) But stipulations or agreements may be implied, upon the breach of which an action may be brought. Mutual contracts sometimes contain a condition, the breach of which by one party permits the other to throw the contract up, and consider it as altogether null. Whether a provision shall have this effect, for which purpose it must be construed as an absolute condition, is sometimes a question of extreme difficulty. It is quite certain, however, that no precise words are now requisite to constitute a condition; and perhaps that no formal words will constitute a condition, if it be obvious from the whole instrument, that this was not the intention. or understanding of the parties. *It would be difficult, and perhaps impossible, to lay *527 down rules which would have decisive influence in determining this vexed question. Indeed, courts seem to agree of late that the decision must always "depend upon the intention of the parties, to be collected in each particular case from the terms of hold, then, that where a party undertakes to pay upon a special contract for the performance of labor, or the furnishing of materials, he is not to be charged upon such special agreement until the money is earned according to the terms of it, and where the parties have made an express contract, the law will not imply and raise a contract different from that which the parties have entered into, except upon some further transaction between the parties. But if, where a contract is made of such a character, a party actually receives labor or materials, and thereby derives a benefit and advantage, over and above the damage which has resulted from the breach of the contract by the other party, the labor actually done, and the value received, furnish a new consideration, and the law thereupon raises a promise to pay to the extent of the reasonable worth of such excess. This may be considered as making a new case, one not within the original agreement, and the party is entitled to recover on his new case for the work done, not as agreed, but yet accepted by the defendant.' 1 Dane's Abr. 224." But the courts of other States have thus far shown little disposition to adopt the views of the learned judge. Thus, in Eldridge v. Rowe, 2 Gilman, 91, the court held, upon a similar state of facts, that the plaintiff was not entitled to recover. And Young, J., said: "It is no objection to say that the defendant has received the benefit of his labor, this being a case, where, from its nature, the defendant could not separate the products of his labor from the general concerns of his farm, and ought not, therefore, to be responsible to any extent whatever for not doing that which was impossible." See also Miller v. Goddard, 34 Me. 102; Olmstead v. Beale, 19 Pick. 529; Davis v. Maxwell, 12 Met. 286; Swanzey v. Moore, 22 Ill. 63. Hansell r. Erickson, 28 Ill. 257, in which case it is also held, that a contract to work a given number of months at a fixed price per month, is an entire contract, extending over the whole number of months. See also ante, p. 36, note (g), and p. *40, note (f). Sedgwick on Damages, § 658, et seq. Difficult questions frequently arise in the classes of cases considered in the present note, as to the measure of damages, and the right of the defendant to have deducted from the amount otherwise recoverable the damage sustained by him in consequence of the breach of the contract. These questions will be considered under their appropriate heads in the subsequent part of this treatise. (j) See ante, p. *510, n. (y). the agreement itself, and from the subject-matter to which it relates." (k)" It cannot depend on any formal arrangement of the words, but on the reason and sense of the thing as it is to be collected from the whole contract." () It is said that where the clause in question goes to the whole of the consideration, it shall be read as a condition. (m) The meaning of this must be, that if the supposed condition covers the whole ground of the contract, and cannot be severed from it, or from any part of it, a breach of the condition is a breach of the whole contract, which gives to the other party the right of avoiding or rescinding it altogether. But where the supposed condition is distinctly separable, so that much of the contract may be performed on both sides as though the condition were not there, it will be read as a stipulation, the breach of which only gives an action to the injured party. (n) But it is not safe to assert, that which is sometimes said to be law, (o) that where in case of a breach the party cannot have his action for damages, there the doubtful clause must be read as a condition, because otherwise the party injured would be without remedy. For if "the reason and sense of the thing," or the rational and fair construction of the contract, leads to the conclusion that the parties did not agree nor intend that there should be this condition, then there is none; and if a party be in this way injured and remediless, it is his own fault, in that he neither inserted in his contract a condition, the breach of which would discharge him from all obligation, nor a stipulation, for the breach of which he might have his action. (p) So is he remediless if he cannot procure the performance of a condition of which he permitted the insertion. Thus it is held that if money is to be paid by insurers, or by others, when a certain certificate is presented, the money is not payable in the absence of the certificate, although it be unreasonably withheld. (pp)1 (k) Per Tindal, C. J., in Glaholm v. Hays, 2 Man. & G. 266. () Per Lord Ellenborough, in Ritchie v. Atkinson, 10 East, 295. And see Northampton Gas Light Co. v. Parnell, 15 C. B. 630, 29 Eng. L. & Eq. 231. (m) Boone v. Eyre, 1 H. Bl., 273, note (a). (n) See Hemans v. Picciotto, 1 C. B. (N. S.) 646. (0) See Pordage v. Cole, 1 Wms. Saund. 319. (p) See infra, p. * 529, note (r). (pp) Coles v. Turner, L. R. 1 C. P. 373; Mills v. Bayley, 32 L. J. Ex. 179; Scott v. Corporation of Liverpool, 28 L. J. C. 230. * 1 As to contracts conditional on the satisfaction of one of the parties, see p. 59, note 1, ante. 644 |