services rendered, in preparing a *plan and advertisements, enter*300] ing upon negotiations with persons willing to become purchasers, and the like. If in Simpson v. Lamb it had appeared that the agent had incurred expense or bestowed labour in endeavouring to effect a sale, the judgment of the court shows that he would have been held entitled to recover for that, notwithstanding the action was in form brought for a wrongful revocation of the authority to sell. So, in De Bernardy v. Harding, the defendant being about to erect seats for viewing a public funeral, entered into an agreement with the plaintiff, a foreign agent,' to make the scheme known abroad, and dispose of tickets for the seats. The plaintiff was to be paid for his work and expenses by a per-centage on the tickets which he sold. After the plaintiff had incurred certain expenses, but before he sold any tickets, the defendant desired him not to dispose of them, as he would sell them himself. The plaintiff accordingly sent all applicants for tickets to him, and after the funeral delivered to the defendant a bill for work done and expenses incurred. The defendant paid the expenses, but refused to pay for the work. And it was held by the Court of Exchequer, that it was a question for the jury whether the original contract was not rescinded by mutual consent, and whether there was not a new implied contract that the plaintiff should be paid for the work actually done, as upon a quantum meruit. "Where one party," says Alderson, B., "has absolutely refused to perform, or has rendered himself incapable of performing, his part of the contract, he puts it in the power of the other party either to sue for a breach of it, or to rescind the contract, and sue on a quantum meruit for the work actually done." In Planché v. Colburn, 8 Bingh. 14 (E. C. L. R. vol. 21), 1 M. & Scott, 51 (E. C. L. R. vol. 28), the defendants engaged the plaintiff to write a treatise for a periodical publication: the plaintiff commenced the treatise, but, before he had completed it, the defendants abandoned the work and it was held, that the *301] plaintiff might sue for compensation, without tendering or delivering the treatise. Neither Moffatt v. Laurie, which was cited on the application for this rule, nor the previous case of Moffatt v. Dickson, 13 C. B. 543 (E. C. L. R. vol. 76), at all militates against the ruling in this case. The simple question here is, what implied contract arises, where a special contract for the payment of a given commission on effecting a sale, is improperly rescinded after something has been done towards performance of it by the agent. Clearly, the contract implied by the law, under these circumstances, is, a contract to pay a reasonable remuneration for the services actually rendered. [CROWDER, J.All the work done here was done under the special contract.] The fact of its having been done with a view to the special contract does not prevent the plaintiff from recovering as upon an implied contract. [WILLES, J.-I have just sent to ask the Lord Chief Baron if he was satisfied with the verdict; and he tells me that he was not.] The ver

dict was entirely in conformity with his Lordship's direction; and he certainly evinced no dissatisfaction with it at the time it was delivered. [CROWDER, J.-It does not strike one as being very likely that a man would make such a contract as this in respect of land in which he had no interest.] There was evidence both ways: and, the jury (a special jury) having thought the balance in favour of the plaintiff, the court will not disturb their verdict, merely because the learned judge would have been equally satisfied had it been the other way.

[*302

Montagu Chambers, Q. C., and Hance, in support of the rule.—This was a clear case of misdirection. The learned judge distinctly told the jury that they might, if they thought proper, give the plaintiff a reasonable remuneration for the work done, instead of telling them, as he ought to have done, that the plaintiff's only remedy *was, by an action for wrongfully revoking the authority given by the special contract, as was said in Simpson v. Lamb, 17 C. B. 603 (E. C. L. R. vol. 84). [WILLES, J.-We may amend the declaration now, if necessary see Walker v. Bartlett, 17 C. B. 858 (E. C. L. R. vol. 86).] An amendment of that sort would be placing the defendant in a different and less advantageous position than he was in at the trial. The general rule is, that, where there is a special contract, no action will lie as upon an implied contract arising out of the same transaction. In 2 Smith's Leading Cases, 15, it is said: "There is a numerous class of cases which establish the general proposition, that, while a special contract remains open, i. e. unperformed, the party whose part of it is unperformed, cannot sue in indebitatis assumpsit to recover a compensation for what he has done, until the same is completed. This principle is affirmed and acted on in Cutter v. Powell; it was also the ground of the decision in Hulle v. Heightman, 2 East, 145." Here, the plaintiff stipulates for a large remuneration in a given event, taking his chance of obtaining that or nothing. [CROWDER, J.-He obtained an offer from one who was willing to purchase the land at a higher price than the plaintiff expressed his willingness to take. What more could he do?] The offer was not obtained until after the plaintiff had had notice that the land was Wagstaffe's. The work done, therefore, was done in endeavouring to obtain a purchaser for Wagstaffe. The case strongly resembles Cutter v. Powell, where it was held, that, if a sailor hired for a voyage take a promissory note from his employer for a certain sum, provided he proceed, continue, and do his duty on board for the voyage, and before the arrival of the ship he dies, no wages can be claimed either on the contract or on a quantum meruit. [WILLIAMS, J.-It did not appear there that the performance of the contract was prevented by the tortious act of the defendant.] But in Hulle v. *Heightman, [*303 it did not appear that the plaintiff was prevented from performing the contract by the tortious act of the defendant. In the notes to Cutter v. Powell, 2 Smith's Leading Cases, 4th edit., 19, it is further

6

said," In Read v. Rann, 10 B. & C. 439 (E. C. L. R. vol. 21), recognised in Broad v. Thomas, 7 Bingh. 99 (E. C. L. R. vol. 20), 4 M. & P. 732, the doctrine of Cutter v. Powell, Hulle v. Heightman, and Sinclair v. Bowles, 9 B. & C. 92 (E. C. L. R. vol. 17), 4 M. & R. 1, was again acted upon. In that case, a ship-broker brought an action for commission for procuring a charterer for the defendant's ship. It was proved to be a custom in the city, that, in such cases, if the bargain was perfected, the commission was 5 per cent., but, if the bargain went off, nothing was payable; and here it had gone off. The plaintiff was nonsuited. The claim of the plaintiff,' says Parke, J., 'rests on the custom, not on a quantum meruit. The custom presupposes a special contract, and, if that is not satisfied, no claim at all arises, for no other contract can be implied. In some cases, a special contract not executed may give rise to a claim in the nature of a quantum meruit, ex. gr. where a special contract has been made for goods, and goods sent not according to the contract have been retained by the party, there a claim for the value on a quantum valebant may be supported. But then, from the circumstances a new contract may be implied.' Here, there was no rescinding of the contract by the defendant. The matter went off because the real owner of the land (Wagstaffe) refused to sell it. [CROWDER, J.-Does it matter by what sort of default it was that the plaintiff was prevented from receiving the stipulated remuneration?] It might be that the defendant was responsible in a special action for damage resulting to the plaintiff from his false representation that he had authority to sell the land,-Polhill v. Walter, 3 B. & Ad. 114 (E. C. L. R. vol. 23). At all events, it should have been left to the jury to say whether or not the special contract had been *rescinded. *304] [CROWDER, J.--Is that so? And, if it were, how could the jury help inferring a contract, under the circumstances, to pay for the plaintiff's services so much as they were reasonably worth? WILLES, J., referred to Sanders v. Vanzeller, 2 Gale & D. 244.]

WILLIAMS, J.(a)-I am of opinion that there was no misdirection in this case. But I think there was evidence which was fit for the consideration of the jury, that the defendant employed the plaintiff to sell the land, upon the terms, that, if he found a purchaser at the price named, he was to receive a commission of 13 per cent.; and that the plaintiff bestowed his labour in endeavouring to find, and did find, a purchaser at that price; but that the negotiation failed because the defendant was not prepared to come forward as vendor; and that so the plaintiff was prevented from earning the stipulated commission. If the jury believe these facts to be established, then, according to Planché v. Colburn, 8 Bingh. 14 (E. C. L. R. vol. 21), 1 M. & Scott, 51 (E. C. L. R. vol. 28), and other authorities in conformity therewith, the plaintiff was entitled to abandon the special contract, and resort to

(a) Cresswell, J., had gone to chambers.

an action founded upon the promise which the law would infer from such a state of facts. That was evidently the view taken by the Lord Chief Baron at the trial. It has been contended that that is erroneous, and that it should have been left to the jury to say whether there was any such implied contract. I think it was not a question for the jury at all. It is true that the Court of Exchequer in De Bernardy v. Harding, 8 Exch. 822,† appears to have treated it as a matter for the consideration of the jury: but the decision there is quite consistent with Planché v. Colburn; and Alderson, B., distinctly states and approves of the principle of that case. For these reasons, I am of opinion that the *direction of the Lord Chief Baron was quite right, and that there was nothing to leave to the jury. I am anxious it should [*305

not be supposed that the court intends to lay it down as a general rule, that, where an agent is employed to sell property, and his authority is revoked before anything has been done under it, he is at liberty to resort to the common counts for his work and labour in endeavouring to find a purchaser. In such a case, nothing more appearing, if the plaintiff attempted to rely on the quantum meruit, he would probably be met by the implied understanding that the agent is only to receive a commission if he succeeds in effecting a sale, but, if not, then he is to get nothing. But no such answer was or could be set up here, because the plaintiff had actually succeeded in finding a person who was willing to become a purchaser at a price exceeding the price demanded, and was only prevented from carrying out the negotiation by the defendant's inability to convey. With regard to the second branch of the rule, as the Lord Chief Baron has expressed himself not satisfied with the verdict, the cause must go down again, the costs to abide the event. CROWDER, J.-I also think there was no misdirection in this case. The defendant having declined, from whatever cause, to sell the land after the plaintiff had succeeded in procuring a purchaser willing to take it at the price proposed, and the plaintiff having thus done all he could to entitle him to the stipulated commission, the Lord Chief Baron ruled, that, although the plaintiff could not maintain an action upon the special contract, he was nevertheless entitled to recover upon the common count a reasonable remuneration for his work and labour. In this I am of opinion he was quite right. His ruling is perfectly consistent with the law as laid down in the notes to the case of Cutter v. Powell, in 2 Smith's *Leading Cases, 1. At p. 16, the learned editors [*306 say,—“ — It is an invariably true proposition, that wherever one of the parties to a special contract not under seal has, in an unqualified manner, refused to perform his side of the contract, or has disabled himself from performing it by his own act, the other party has thereupon a right to elect to rescind it, and may, on doing so, immediately sue on a quantum meruit for anything which he had done under it previously to the rescission: this, it is apprehended, is established by Withers v.

Reynolds, 2 B. & Ad. 882 (E. C. L. R. vol. 22), Planché v. Colburn, 8 Bingh. 14, 1 M. & Scott, 51, Franklin v. Miller, 4 Ad. & E. 599 (E. C. L. R. vol. 31), and other cases." Again, at p. 31, it is said,—« It being, therefore, established, that, where one contractor has absolutely refused to perform, or rendered himself incapable of performing, his part of the contract, the other contractor may, if he please, rescind; such act or such refusal being equivalent to a consent to the rescission: the remaining part of the proposition above stated, is, that, upon such a rescission, he has a right, if he have done anything under the contract, to sue immediately for compensation on a quantum meruit. That he should do so, is consistent with reason and justice; for, it is clear that the defendant cannot be allowed to take advantage of his own wrong, and screen himself from payment for what has been done, by his own tortious refusal to perform his part of the contract, which refusal alone has enabled the plaintiff to rescind it. He cannot, however, recover on the special contract, and must therefore be entitled to sue upon a quantum meruit, founded on a promise implied by law on the part of the defendant to remunerate him for what he has done at his request; and, as an action on a quantum meruit is founded on a promise to pay on request, and there is no ground for implying any other sort of promise, he may of course bring his action immediately. This point is decided by Planché v. Colburn." It is insisted on the present occa*307] sion, that the Lord Chief Baron should have left it to the jury whether under the circumstances a contract for reasonable remuneration was to be implied. It seems to me, however, that that is a question of law, and not a question for the jury. It would be idle to put it to the jury to imply what of necessity they must imply. In De Bernardy v. Harding, it is true, something is said by Alderson, B., as to leaving it to the jury: but the decision does not turn on that. Here, it seems to me, that, under the circumstances proved, a contract was implied by law to pay the plaintiff a reasonable remuneration for his labour, and consequently the direction was correct. I agree with my brother Williams that the ordinary rule as to employing an agent to let or to sell for a certain commission, where the authority is revoked before anything has been done under it, does not apply to the present case. As, however, the learned judge who tried the cause is dissatisfied with the result, it must go down again.

WILLES, J.—I am of the same opinion. The form in which the objection was presented at the trial, was, that the declaration should have been framed specially for a wrongful withdrawal of the authority to sell. That, however, is an erroneous notion. There are many instances in the books which might be cited to show, that, under circumstances like these, the plaintiff may maintain an action upon the money counts. In the case of goods shipped from abroad, to be paid for in three months from arrival, under ordinary circumstances the goods must be paid for