| Vt. | Aug 15, 1839
The opinion of the court was delivered by
— The defendant complains of certain parts of the charge of the county court.
1. The jury were told they might give a verdict for the plaintiff, on the ground that he was released or exonerated from further proceeding in the work, by the mutual agreement of the defendant and Harrison Blood. Of the propriety of this part of the charge there can be no doubt. It is always competent for the parties to rescind a subsisting simple contract by a naked agreement to that effect. Whether this was the intention of the parties, is to be determined by the jury from what passed between them.
2. The jury were told, that if the defendant interfered and took the cattle away, without just cause of dissatisfaction, this would be such a violation of the contract as would justify the plaintiff in abandoning the contract. Of this, I apprehend, there can be no doubt. If the defendant violated the contract, on his part, and by taking away the cattle, without cause, put it out of the plaintiff’s power to proceed with the contract, he must be permitted to recover for the labor he had performed. Whether the defendant acted capriciously and without good reason, was a question for the jury,
Upon the general ground, too, that plaintiff had preformed labor on the defendant’s land, which must go for his benefit, and which the plaintiff could not remove, he was entitled to recover as much as he had, upon the whole, benefitted the defendant. Dyer v. Jones, 8 Vt. R, 201. Heywood v. Leonard, 7 Pick. 181. The rule of damages, in these cases, seems to be to allow for the labor at the price agreed, and deduct the defendant’s damages, which was, substantially, the rule given to the jury in this case. So that upon any view of the case, we do not perceive how the defendant had any just cause of complaint, so far as the charge was concerned.
The defendant offered to prove that, at the time the plaintiff left the country it was “ reported” he had absconded. The fact whether he had absconded or not, was wholly immaterial, if he had left some one to fulfil this contract, which was the fact, and which the defendant learned before he took the cattle away, but that fact could not be shown by common report. We think the court below committed no error.
Judgment affirmed.