| Me. | Jun 15, 1834
When a party has entered into a special contract to perform work for another, and the work is done, but not in the manner stipulated for in the contract, the party performing- it may recover on a quantum meruit, especially if the other party has accepted the labor, or is in the enjoyment of its fruits. In this case, the plaintiffs claimed for certain labor performed by them on the defendant’s house ; and having proved the performance of the labor, they might well rest until this proof should be avoided by the defence.
It came out in evidence, that the labor was performed under a special contract, and consequently, it became necessary for the plaintiffs either to show that they had performed this contract, so that nothing remained to be done on their part; or that there had been a deviation by the assent of the defendant at the time, or subsequently assented to, either expressly or impliedly, by his acts. How could either of these alternatives be shewn, except by the production of the special contract ? If the plaintiffs bad claimed under a general count, contending that the special agreement had been fully performed on their part, how eould they establish the fact of performance without shewing the agreement ? If they rested their claim, as they actually did, on the ground of a deviation from the special agreement, and acceptance by the defendant, how could they show such deviation, except by first shewing the contract ?
As soon as it came out in evidence that the labor -was performed under a special agreement, the defendant might securely rest, until the plaintiff had removed this obstacle in one or the other of the modes above suggested.
They could do neither without first showing what the agreement was; and, as that had been reduced to writing, the instrument itself was the best and only admissible evidence.
It was also necessary for another purpose, as a standard by which the damages were to be estimated.
When a party engages to do certain work according to a specification, and does not perform it as specified, what he is entitled to, is the price agreed upon, subject to the deduction of the sum which it would take to make it agree with the specification. Thornton v. Place, 1 Moody Robinson, 218.
For these purposes, the contract was clearly admissible.
The next objection is, that the action cannot be maintained in the joint names of the plaintiffs, as the work was done by Jewett alone.
The whole case shews that the labor, was performed on account of both plaintiffs, and was so understood by the defendant. Now it is immaterial whether Arnold performed the labor himself or by his agent, Jewett. If they were jointly interested in its performance and the defendant was conusant of it, and accepted it as such, then he is unquestionably answerable to both.
That he did know of their joint interest in the labor, and acquiesced in it, is manifest from the two papers offered and properly admitted in evidence, extending the time after a portion of the labor had been performed, as well as from his inquiry, if Arnold was going on under the contract, and Jewett’s reply, Jewett and Arnold -were both parties to the contract. The defendant was advertised that the labor was performed for them under the contract; and as, by virtue of that, they cannot recover, having failed to fulfil it, they are jointly entitled to remuneration under this form of action.
We apprehend that it is immaterial whether the labor was performed by one or both of the plaintiffs, provided it was for and on account of both, and the defendant so understood and assented to it.