44 N.C. 76 | N.C. | 1852
On the trial before his Honor, Judge Dick, at CASWELL, on the last Fall Circuit, the evidence was, that the plaintiff, a house carpenter, had agreed to build certain specified additions to the dwelling-house of the defendant, in which he resided with his family, for the sum of $200, and that the plaintiff voluntarily and without any fault of the defendant, abandoned his work when it was about half finished; and although often requested by the defendant to return and finish the work according to the contract, he refused to do so.
The plaintiff's counsel, upon this state of facts, asked the court to instruct the jury that the plaintiff, notwithstanding the special contract, was entitled to recover for so much of the work as he had actually done — the value to be estimated by them with reference to the $200, the price of the whole job. His Honor declined to give this instruction to the jury, but on the contrary charged them that the plaintiff was not entitled to recover. Verdict and judgment for the defendant, and appeal to the Supreme Court.
In respect to actions on contracts, the rule is, that where a special contract is made, the action for its breach must in general be on the special contract, while it is open and unperformed; and no actionindebitatus assumpsit for any thing done under it can be brought. The plaintiff in this case undertook to do certain work for the defendant for a specified sum of money, and after the work was half accomplished, abandoned it, and refused to go on with or complete it. The special contract was still open, for the defendant requested the plaintiff to finish his work. The action is upon the quantum meruit: the plaintiff merits nothing, and the law will give him nothing. The contract was an entire one and executory, and after performing a part, he wilfully and without a just excuse, and against the will of the defendant, refused to go on with it. The contract being an entire one, performance by the plaintiff was a condition precedent, which must be averred in the declaration, in which case it must be proved, unless the opposite party has discharged him from executing it, either by refusing to let him go on with it, or by disabling himself from performing his part. If the plaintiff does not aver performance on his part, or a readiness to do so, he can recover neither on the special contract nor on a quantum meruit. To this point, Cutler v. Powell, 6 T. R., 320, is a leading and strong case. There, a sailor hired for a voyage from Kingston to Liverpool for a stipulated price, "provided he proceeded, continued, and did his duty" or on a quantum meruit; that the performance of the voyage was a condition precedent, which must be performed before anything could be claimed by the sailor. A stronger case, and one more forcibly illustrating the principle, cannot well be conceived. See the able note to volume 2 Smith's Leading Cases, p. 13, where all the English and American cases are collected and digested. In the note, the American cases are arranged, and the principles to be extracted from them stated. The 5th division is, if there has been an entire executory contract, and the plaintiff (78) has performed a part of it, and then wilfully refuses, without legal excuse, and against the defendant's consent, to perform the rest, he can recover nothing on the special or general assumpsit. See 25th page of same volume of Smith. In the case of Jennings v. Camp, 13 Johns, 97, the same doctrine is stated by Justice Spencer, in declaring the opinion of the Court. See, also, Carter v. McNeely,
PER CURIAM. Judgment affirmed. *87
Cited: White v. Brown,