Dickinson, J.
All of the assignments of error involve the question of the right of the plaintiffs to recover the value of their services in an action upon the quantum meruit, it appearing by the reply and from the evidence that the contract specially provided that, as compensation therefor, the plaintiffs were to receive from the defendant an annual pass over its road. The same considerations bear upon the question of pleading and of the measure of damages. The majority of the court determine the cause upon the following considerations : It is not to be denied that, in general, the rights of contract*237ing parties are controlled and measured by the terms of their contracts; and when, by agreement, a special mode of compensation has been fixed, the measure of recovery for a refusal to deliver or to. do the particular thing agreed upon, is the value of what was thus to have been received. This rule is generally available as a measure of damages for the breach of the contract, and affords just compensation by giving in place of the thing stipulated its full and ascertainable equivalent in money. But this rule has been adopted because it is a just and practical measure of damages. It can be of no avail when, from the very nature of the case, its application would afford no measure for a recovery. It then becomes necessary to resort to some other mode of determining the sum to be awarded for the breach complained of. France v. Gaudet, L. R. 6 Q. B. 199; Hinde v. Liddell, L. R. 10 Q. B. 265; Kountz v. Kirkpatrick, 72 Pa. St. 376; McHose v. Fulmer, 73 Pa. St. 365; Masterton v. Mayor of Brooklyn, 7 Hill, 61, (42 Am. Dec. 38;) Leake, Cont. 1059, 1060.
And this is considered to be the. case here. The pass which the evidence went to show the plaintiffs were to have received would have been personal to them, — in substance, a personal right to ride free over the defendant’s road for a year, whenever they wished to do so, whether for business or pleasure. Such a privilege is not a thing of commerce, and has no market value, nor, in the opinion of the majority of the court, any definitely ascertainable value or worth. But as this- was the agreed recompense for the services to be rendered, and it being, from the nature of the case, impossible to measure the value of the pass, it is not unjust towards the defendant, if it has refused to make the recompense agreed upon, to treat that, as the contracting parties may be deemed to have done, as the equivalent in value of the services, and measure the recovery for the breach of the contract by the value of the services. In this view of the case, while technically the action should be upon the special contract, yet, as the recovery is in effect allowed upon the quantum, meruit, no prejudice can have resulted from the form of the complaint, and the order refusing a new trial should be affirmed.
I concur in this result, but -do not think that we are justified in saying that the value or worth of the pass was not susceptible of proof. *238The year during which the plaintiffs were to have enjoyed the benefits of the pass having already expired when the action was commenced, I think that it should be assumed that the circumstances going to .show the usefulness and value of the stipulated privilege might have been presented to the jury, so that they could have made an intelligent estimate of the injury which plaintiffs had suffered from the refusal to give the pass. See Erie & Pittsburgh R. Co. v. Douthet, 88 Pa. St. 243. I would place the decision upon the proposition, which is not to be taken as adopted by the court, that the defendant having wholly refused to perform the alleged contract on its part, (not being a stipulation for the payment of money,) and the plaintiffs having performed on their part, but having received nothing in return, the defendant cannot hold the plaintiffs bound by the contract, or object if they also disregard its stipulations; that they have, under such circumstances, an election either to stand upon the special contract and recover for its breach, or to treat it as rescinded, and recover the value of their services as if the special contract had not been made. Keys v. Harwood, 2 C. B. 905; Drew v. Claggett, 39 N. H. 431; Lawrence v. Taylor, 5 Hill, 107, 114, 115; Graves v. White, 87 N Y. 463; 2 Chit. Cont. 1091; 2 Pars. Cont. 812, (*678.) In such case the commencement of this action to recover the value of the services would be a sufficient indication of the plaintiffs’ election. Lawrence v. Taylor, supra; Graves v. White, supra; Graham v. Holloway, 44 Ill. 385" court="Ill." date_filed="1867-04-15" href="https://app.midpage.ai/document/graham-v-holloway-6952564?utm_source=webapp" opinion_id="6952564">44 Ill. 385.
Mr. Justice Berry is of the opinion that our decision may well be placed upon either of the two grounds stated.
Order affirmed.