It was error in the presiding judge to direct the $192 to be deducted from the value of the labor and materials. The plaintiff commenced to work under a written contract; and, while that contract was in force, his rights, remedies- and liabilities were all to be determined by the terms of that contract; but, when that contract was wholly terminated, his rights would depend upon the mode in which it was terminated. It may have been terminated by his own voluntary refusal to continue to perform it, or by the absolute prohibition of the defendants to permit him to perform it, or by his absolute inability
The rule laid down in Hayward v. Leonard, 7 Pick. 181, has been constantly recognized by this court, and has been approved as often as recognized, as founded in right and equity. Hayward v. Leonard was followed by Smith v. Lowell Meeting-House, 8 Pick. 178, Moulton v. Trask, 9 Met. 577, Snow v. Ware, 13 Met. 42, and Atkins v. Barnstable, 97 Mass. 428. The result of the cases is, that, if the special contract is terminated by any means other than the voluntary refusal of the plaintiff to perform the same upon his part, and the defendant has actually received benefit from the labor performed and materials furnished by the plaintiff, the value of such labor and materials may be recovered upon a count upon a quantum meruit, in which case the actual benefit which the defendant receives from the plaintiff is to be paid for, independently of the terms of the contract. The contract itself is at an end. Its stipulations are as if they had not existed. But this does not imply that the contract may not be put in evidence, and its terms referred to, upon the question of the real value to the defendant of the plaintiff’s labor and materials.- If the time of performance is extended very far beyond the time fixed by the contract, if the materials furnished are of a very different quality from that provided for by the contract, these facts have necessarily a bearing upon the real value of the services and labor. The original contract price, too, is an important element in determining the value of the labor and materials; and the proportion in value which the work done bears to the whole value of the contract labor and materials is also important in determining the quantum meruit.
It follows that, upon the authorities in this Commonwealth, the plaintiff was entitled to recover what, under all the circumstances of the case, his labor and materials were actually worth. And, as we understand that no objection was made by either party to the rules which the presiding judge laid down to guide the jury in determining the value of the labor and materials, there was no other error in the trial than the deduction of the $192; and, by the agreement of the parties, as it