151 N.W. 31 | N.D. | 1915
Plaintiff has recovered judgment against defendant for a small amount as a balance of a thresh bill. Judgment was granted upon the pleadings. In brief, plaintiff agreed to thresh all of defendant’s grain. He threshed the wheat and oats, but refused to thresh the flax. Defendant was unable to procure threshing of his flax that fall, and defends and counterclaims for the amount of the resulting damage from the flax remaining unthreshed through the winter. The contract for-threshing was the usual one, with no special provision whereby
The question is an important one, and no doubt much can be said towards and much authority cited sustaining the contention of the defendant. The rule at common law was against plaintiff’s recovery until the case of Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713, was decided in 1834, in disregard of precedent. But the reasoning of that case is so cogent that it seems to have at least divided, if'not changed, the current of authority. It first recognized the fact of the benefits of the part performance to the party who would keep such benefits, incapable of being returned, and still avoid paying anything for the benefits accrued where the contract is not fully performed. It may be remarked that besides affecting parties similarly situated to those before us, this decision must also be precedent upon the right of recovery of those in analogous positions; as, for instance, the farm laborer who hires for the summer and at the end of six months’ labor performed quits his employment, and similar cases, where the contract is indivisible. An equitable rule has gradually developed permitting a recovery for the value of the services- rendered, irrespective of the breach, giving to the other party to the contract a corresponding right of action in damages separately or in mitigation of the plaintiff’s recovery, so
But defendant asserts that conceding plaintiff might have recovered upon the quantum meruit, he has pleaded an express contract with partial performance only, and that it was error for the court to grant