This was no more than a declaration of the common law right of the justice. State y. Hill, 48 Me. 241; Brown v. Moore, 79 Me. 216, 9 Atl. 355; State v. Perry 115 Me. 204, 98 Atl. 634.

By chapter 207, Public Laws of 1880, the following statute was enacted:

"The Supreme Judicial Court, or any superior court, before which any person has been convicted for an offense, capital, or formerly capital, or may be convicted for an offense formerly capital, may either in term time or vacation grant a new trial, for any cause for which a new trial may or should be granted."

This statute did not provide for appeal from the decision of the presiding justice in either court.

By Public Laws of 1883, c. 205, § 8, the respondent was granted the right of appeal from an adverse decision upon his motion to the next law term, and the concurrence of but three justices was necessary to grant such motion. This chapter restored the death penalty, and section 8 applied to both the Supreme and superior courts.

That section appears in Rev. St. 1883, c. 134, as section 27. By Public Laws 1889, c. 152, section 27 of chapter 134 was made to apply to "murder or any offense for which the punishment may be imprisonment for life" instead of to a "capital case."

This change in phraseology was required by the repeal of the death penalty which abolished "a capital case." The appeal, however, remained precisely the same as in Rev. St. 1883, c. 134, § 27, and applied to both the Supreme and superior courts.

Rev. St. 1883, c. 134, § 27, as amended, became chapter 135, § 27, in the revision of 1903. Consequently an appeal for any. life offense under the latter section could be taken from both courts.

Public Laws 1909, c. 184, amended section 27, c. 135, Rev. St. 1903, by adding the following:

"But in all other criminal cases amounting to a felony, where like motion is filed and appeal taken to the law court the concurrence of

murrer.'

This addition, it will be seen, does not in any way differentiate between the Supreme and superior courts, with reference to the right to pass upon "such motion," or upon the right of appeal. The only change is that it requires a concurrence of the majority of the justices instead of three to grant the motion. In the language of the section "where like motion is filed and appeal taken to the law court" the word "like" would indicate that both the motion and the appeal should be based upon the same jurisdiction as the motion and appeal in case of punishment or imprisonment for life. It would therefore follow that an appeal in case of a felony upon the denial of a motion for a new trial by the presiding justice could be taken from either court.

By chapter 18, Public Laws of 1913, Rev. St. c. 135, § 27, as above amended, was again amended, so that, to sustain an appeal in offenses punishable by imprisonment for life, it required a majority of the justices instead of three. No other amendment was made. This did not affect the right of appeal from either court.

Neither Rev. St. 1883, c. 77, § 82, nor Rev. St. 1916, c. 82, § 100, identically the same, inhibit an appeal in a murder case in the superior courts although the language is broad enough to deny an appeal in all criminal cases.

In view of the history of these statutes, and of the fact that the superior court of Cumberland county has always had jurisdiction of murder cases, a class of criminal cases which certainly does not fall within the purview of chapter 82, § 100, and that an appeal in case of felonies has been coupled with, and is an amendment of, the section of the statute which has always applied to capital or murder offenses, we think that felonies, the penalty for which in some cases may be very severe, were intended, so far as the right of motion for new trial and appeal is concerned, to be placed in the category of offenses which were formerly capital or for which the punishment might be imprisonment for life.

cation that the plaintiff would offer in proof of the latter count the items and charges enumerated in the account annexed.

The plea was the general issue. The defense offered was a special contract, and alleged breach thereof, and a deduction in damages therefor. The case was tried upon the theory: (1) That no claim for a deduction in damages could be made, under the general issue; (2) that the plaintiff could recover, regardless of any breach of contract, what the logs delivered were reasonably worth; (3) that the contract was fully performed.

[1] It should be noted that a quantum meruit upon an implied contract and a quantum meruit upon a special contract originate and proceed to a judicial termination upon quite different grounds. A quantum meruit upon an implied contract is not founded upon a breach, but upon conditions and circumstances which the law says implies a promise on the part of the beneficiary to pay what in equity and conscience the services are reasonably worth. There is no fixed standard to which the value of the services may be referred for determination. On the other

The interpretation of the contract of sale in question was a question of law; whether modified, a question of fact.

4. SALES 62-DIVISIBLE CONTRACT.

Contract to deliver about four million feet fir logs to be cut during winter of 1914-1915, about five million feet to be cut during winter of 1915-1916, and about five million feet to be cut during winter of 1916-1917, was divisible, and each season's cut was as distinct as though there had been a separate contract for each. 5. SALES 89-MODIFICATION OF CONTRACTBURDEN OF PROOF.

In action to recover under a quantum meruit for quantity of logs delivered under special contract, plaintiff had the burden of showing that the contract was modified as claimed by him.

tract, is founded upon the plaintiff's breach, and the contract price is the "standard by which the damages are to be estimated." Jewett v. Weston, 11 Me. 348. We must accordingly bear in mind, throughout this whole discussion, that we are dealing with a special contract.

A special finding was submitted upon the question of performance, and the jury found in favor of the plaintiff. This finding took care of the question of damages, provided the finding, upon the law and evidence, can be sustained; and of course settles the whole case. The essential part of the contract was as follows:

"Memorandum of agreement, between Boyd & Harvey Company and Blaine S. Viles, Augusta, Maine, parties of the first part, and the Kennebec Lumber Company, of Augusta, Maine, party

Action by Blaine S. Viles against the Kennebec Lumber Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ.

to be cut during the winters 1914, 1915, 1916, 1917. Said Boyd & Harvey Company and Blaine S. Viles agree to sell to the Kennebec Lumber Company about four million (4,000,000) feet to be cut during the winter of 1914-1915, about five million (5,000,000) feet to be cut during the winter of 1915-1916, and about five million (5,000,000) feet to be cut during the winter of 1916-1917."

SPEAR, J. This case is in the form of an action in assumpsit, upon an account annexed, and a quantum meruit, with a specifi

a contract with the defendant, by which he agreed to deliver a much larger quantity than was actually furnished, and that in consequence of such shortage of delivery the plaintiff was guilty of a breach of his contract, and the defendant was thereby subjected to damages. The first inquiry is: If there was a breach of contract, was the defendant entitled to show it, and claim the damages resulting therefrom under the plea of the general -issue? Because if the defendant could not do this, under that plea, the only issue was the quantity of logs delivered, and their value. Furthermore, if damages could not be shown under the plea, it is evident that the contract and evidence of performance or nonperformance were admissible only upon the issue of good faith. But this issue was eliminated by the verdict, and we shall have no occasion to further allude to it.

The theory upon which the case was finally submitted to the jury is shown by the following extract from the judge's charge:

"The defendant has stated to the court during the trial, and he has urged it to you, that in arriving at that figure of what the plaintiff reasonably deserves to have, if you come to that, he is entitled to have you deduct the damages which the defendant has sustained by reason of the nonperformance of the contract. * I cannot give you that rule. But the question for you to decide, if you come to that, would be how much the logs furnished by Mr. Viles this last season were reasonably worth, considering that the remainder, if any, were not furnished, and considering that some saw logs, if you find such to be the fact, were taken out? To put it another way, were the logs that he actually received worth any less because some were not furnished? Were they worth any less because some large trees were taken out, provided that the logs that were left came up to the specification? Not, you see, whether the defendant was left short of logs for his mill. That is not the question; but the question is, did, or does, the plaintiff deserve to recover under that quantum meruit clause, if you come to that, for the logs which he did furnish in good faith under the circumstances disclosed in this case?"

By the use of the above language the defendant was denied any consideration for the shortage of logs for his mill on account of the breach of contract, and the plaintiff was permitted to recover what the logs which he delivered "were reasonably worth" without any regard to the breach. The shortage, in such a contract, might be very important.

As this case finally shaped up, it is therefore obvious that but two issues are before this court: (1) Was the defendant under its plea entitled to show a breach of contract and claim a reduction of the plaintiff's verdict by reason of damage, if any, it might

have sustained on account of the breach? (2) Was the jury justified, under the law and evidence, in finding a special verdict of performance? The first issue presents a question of law. We think it should be resolved in favor of the defendant. It does not involve

recoupment as a matter of pleading at all. The course of proceeding to have been pursued in the framing of the issues in the trial of this case is clearly mapped out in Jewett v. Weston, 11 Me. 346. The parties had entered into a special contract for the performance of certain work. The plaintiff brought an action upon quantum meruit. The court say:

"Having proved the performance of the labor, they might rest until this proof should be avoided by the defense."

How "should it be avoided by the defense?" This is the crucial inquiry, as it vitally concerns the matter of pleading. Was it by special plea, or brief statement under the general issue, which only was pleaded? Not at all. The court states how:

"It came out in evidence that the labor was performed under a special contract."

This is all that appeared. Nothing further was done or required by way of pleading. Yet the court say:

"As soon as it came out in the evidence that the labor was performed under a special agreement, the defendant might securely rest, until the plaintiff had removed this obstacle [the special contract] in one or the other of the modes above suggested."

The modes suggested were by proof of performance or of "deviation" by consent.

These three moves follow in logical sequence under the general issue. No recoupment was pleaded. The contract was not mentioned in any of the pleadings. As above stated, "it came out in the evidence." Yet the contract was admitted for the purpose (1) of "showing what the agreement was," (2) "as a standard by which the damages were to be estimated." Under the plea of the general issue, the court say in regard to the defendant's right to offset his damages, or recoup his damages, or deduct his damages (what you may call the method is immaterial), that

"The contract price would be the rule in case the contract had been performed. But that not having been done, so much was to be deducted as the defendant suffered by reason of its nonperformance"-and cites Hayward v. Leonard (Mass.) 7 Pick. 181, 19 Am. Dec. 268, to which allusion will be further made.

That case is based upon the theory, and establishes the practice, that, when a party is guilty of a breach of his special contract and sues on a quantum meruit, he must in his suit make the defendant whole, for damages suffered by the breach, as he is entitled to recover only what the value of his services have been worth to the defendant. "Quantum meruit" means "what he merits." Damages are in issue, not by plea, but by the nature of the plaintiff's action. The moment he brings quantum meruit on a contract, he acknowledges a breach, and admits notice that he may have damaged the defendant by such breach. Gillis v. Cobe, 177 Mass. 581, 59 N. E. 455. And the only object of a brief statement, under our present form of pleading, is to give notice of the defense to be made. The rules of special pleading were abolished and superseded by the general issue and a brief statement, for the express purpose of abrogating the technical forms and permitting notice of defense regardless of form. Substance was substituted for form. Accordingly, the technical requirement being obsolete, actual notice is all that is now required. And when a party is charged with notice of the defense by his own pleadings, it would seem a useless form to require further notice, under the general issue. McCormick V. Sawyer, 108 Me. 405, 81 Atl. 482, Ann. Cas. 1913B, 316.

This is also the well-settled law, as will appear from an analysis of Hayward v. Leonard, 7 Pick. (Mass.) 181, 19 Am. Dec. 268, and Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. Both cases were tried under the general issue, and the former was "the original case" in Massachusetts where it was held that a quantum meruit would lie in case of breach of a special contract.

Parker, C. J., on page 184 of 7 Pick., says: "We think the weight of modern authority is in favor of the action, and that upon the whole it is conformable to justice, that the party who has the possession * of materials and labor of another shall be held to pay for them, so as in all events he shall lose nothing by the breach of contract.

*

"And yet he [the party guilty of a breach] certainly ought not to gain by his fault in violating his contract, as he may, if he can recover the actual value. * * * The owner is entitled to the benefit of the contract, and therefore he should be held to pay in damages only so much as will make the price good, deducting the loss or damage occasioned by the variation from the contract."

It should be observed that "actual value" was precisely what the plaintiff got, under the charge quoted. The court then further say:

"But the case was * # put to the jury merely on the question whether the house was built pursuant to the contract or not; 106 A.-28

what the house was worth to the defendant, and to give that sum in damages. We think this is ** They not the right rule of damages. * should have been instructed to deduct so much less on account of these departures." from the contract price as the house was worth

A new trial was granted. Just what the logs "were worth to the defendant" was all the plaintiff had to show. We are unable to discover any material distinction between the instructions given in the case at bar and the instructions which were regarded as error in the case just cited. It should be kept in mind that the case cited was tried under the general issue, for we are now discussing the question of pleading, and that under that plea the defendant was allowed to deduct his damage on account of the breach, as we think the defendant was entitled to do in the case at bar. Otherwise the plaintiff might just as well have brought assumpsit upon an account annexed for lumber sold and delivered as upon a quantum meruit on a breach of his own contract. It would seem reasonable that a contract ought to mean something in such a transaction and impose some duty upon the plaintiff, who admits a breach, and asks to recover, not on a contract, but on account of the breach of the contract, for that is just what quantum meruit means in this class of cases.

Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455, illustrates and confirms the doctrine of the opinion above referred to. Every issue raised in the present case was raised in that case and settled in favor of the practice that the defendant was entitled to have his damages deducted from the recovery of the plaintiff, under the plea of the general issue. That was a case of quantum meruit under a special contract. The court referred to the case of Hayward v. Leonard as the principle of justice upon which such form of action can be sustained. It clearly differentiates between an action on a contract and a quantum meruit on account of breach of the same contract. The first is based upon a strictly legal procedure and requires a special plea in recoupment, or the equivalent by way of brief statement, or at least notice of what the nature of the defense may be, as held in McCormick v. Sawyer, 108 Me. 406, 81 Atl. 482, Ann. Cas. 1913B, 316. The second, however, is purely an equitable procedure introduced into Massachusetts practice in "the original case of Hayward v. Leonard (Mass.) 7 Pick. 181 [19 Am. Dec. 268]." Accordingly, prior to 1829 this equitable right was not attainable in Massachusetts. Since then this equitable rule has prevailed upon the principle of equity, under special rules of law.

The Gillis Case held that quantum meruit is founded upon the theory that the action per se is an admission on the part of the plaintiff that he is guilty of a breach of his contract, and that he seeks to recover, not