| Me. | Jul 1, 1852
The opinion of the Court, Shepley, C. J., Wells, Rice and Appleton, J. J., was drawn up by
This was an action for work performed under a special contract, in which, it was alleged, the plaintiff was to labor during the season of lumbering, at an agreed price per month.
The Judge of the District Court instructed the jury in substance, that if the plaintiff left the employment of the defendant before the contract was performed without the fault or consent of the defendant, still the plaintiff could recover his wages for the time he labored, deducting the damages, which the defendant sustained by a want of entire performance of the contract, and if they were equal to the wages or exceeded them, then the plaintiff could not recover any thing.
It is a rule of the common law, that where an entire service is to be performed, for an entire compensation to be paid at its completion, the performance of the service is a condition precedent to the recovery of the compensation. The language of such contract indicates clearly, that it 'is not intended by the parties that the stipulated price should be paid until the service is performed. And it is manifest, that the rule is founded in the familiar principle, that contracts should be expounded and executed according to the true and just intent of the parties. Cutter v. Powell, 6 T. R. 320; Spain v. Arnott, 2 Stark. R. 227. “ Unless there be some express stipulation to the contrary, whenever a specific sum is to be paid for specific work, the performance or service is a condition precedent; there being one condition and one debt, they cannot be divided.” 3 Stark. Ev. 1303.
In the case of Stark v. Parker, 2 Pick. 267, which was an action for services rendered, it was held, that the plaintiff must perform the agreed service as a condition precedent to his right to recover any thing under the contract, and that
In New Hampshire, it has been thought more equitable that in such cases, the laborer, who has departed from his contract, should recover what his services were reasonably worth. Britton v. Turner, 6 N. H. 481. When the laborer has adequate cause, to justify an omission to fulfil the contract, he cannot be regarded as in any fault. But it does not very well accord with the good faith, which the rules of law uniformly require, to allow him to stop at any stage of his labor, in open violation of his agreement, and still compel his employer to pay him what his services are worth. If it were permitted to the laborer to determine the contract at his pleasure, no well founded reliance could be placed, at any time, upon a due observance of it.
It is contended that this case falls within that class where work and labor and materials are furnished in the performance of contracts, like those of Hayden v. Madison, 7 Greenl. 79 ; Abbot v. Hermon, Ibid, 118 ; and Norris v. School District in Windsor, 3 Fairf. 293, and there is not a complete and full performance in all respects. But it will -be found in those cases, that there was a waiver of a strict compliance or an acceptance of what was done, or that the work was done and the materials furnished, but not in the manner specified in the contract and without any intentional variation from it. Knowlton v. Inhabitants of Plantation No. 4, 14 Maine, 20.
The present case is not one of an imperfect performance, as it would be if the plaintiff had labored during the time, but had performed his labor in a negligent and unskillful manner; but an absolute want of performance, for a portion of the time employed, is the ground upon which the instruction was based.
It is contended, that independently of the instruction under consideration, upon a correct view of the law and the facts, the plaintiff is entitled to retain the verdict. But it is not
If the defendant discharged the plaintiff before the expiration of the time for which he was employed, without justifiable cause, the plaintiff will be entitled to recover all the damages, which he has sustained, by the breach of the contract ; but if the plaintiff has departed from it, without justifiable cause, he cannot recover any thing.
The exceptions are sustained.