think the defendants have no right to say that the contract, which they have thus repudiated, shall still subsist for the purpose of defeating a recovery by the plaintiffs of the actual amount of labor and materials they have expended.

In Tyson v. Doe (15 Vt. 571), where the defendant, after a part performance of a contract for delivering certain articles of iron castings, prevented the plaintiff from farther performing it, the contract was held to be so far rescinded by the defendant as to allow the plaintiff to sustain an action on book for the articles. delivered under it, although the time of credit for the articles, by the terms of the contract, had not expired. The court in that case say, "that to allow the defendant to insist on the stipulation in regard to the time of payment, while he repudiates the others, would be to enforce a different contract from that which the parties entered into." The claim now made in behalf of the defendants, that the rate of compensation specified in the contract should be the only rule of recovery, would, if sustained, impose upon the plaintiffs a contract which they never made. They did, indeed, agree to do all the work of a certain description on three miles of road, at a certain rate of compensation per cubic yard; but they did not agree to make all their preparations and do but a sixteenth part of the work at that rate; and it is not to be presumed that they would have made any such agreement. We are not therefore disposed to enforce such an agreement against them.

The case of Koon v. Greenman (7 Wend. 121) is much relied upon by the counsel for the defendants. In that case the plaintiff had contracted to do certain mason work at stipulated prices, the defendant finding materials. After a part of the work had been done, the defendant neglecting to furnish materials for the residue, the plaintiff quit work and brought his action of general assumpsit. The court held he was not entitled to recover the value of the work, but only according to the rate specified. The justice of the decision is not very apparent; and it does not appear to be sustained by the authorities cited in the opinion, they being all cases, either of deviations from the contract in the manner of the work, or delays of performance in point of time. But that case, if it be sound law, is distinguishable from this in at least two important particulars. In that case the plaintiff was prevented from completing his contract by the mere negligence of the defendant; in this by his voluntary and positive command. In that case there does not appear to have been any difficulty in ascertaining the amount

to which the plaintiff would be entitled, according to the rate specified in the contract; whereas in this it is altogether impracticable to ascertain what sum would be due the plaintiffs, at the stipulated prices, for the reason that when the work was stopped by the defendants, a large portion of it was in such an unfinished state as to be incapable of measurement. That case is therefore no authority against the views we have already taken.

The judgment of the County Court is therefore affirmed.42

CLARK v. MARSIGLIA.

1 DENIO (N. Y.), 317.-1845.

Assumpsit for work, labor, and material. Plea, non-assumpsit. Judgment for plaintiff. Defendant brings error.

Defendant delivered a number of paintings to plaintiff to be cleaned and repaired at a specified price for each. After plaintiff had begun work on them defendant directed him to stop, but plaintiff persisted and claims to recover for the whole. The court charged that as plaintiff had begun the work, he had a right to finish and defendant could not revoke the order.

Per Curiam. The question does not arise as to the right of the defendant below to take away these pictures, upon which the plaintiff had performed some labor, without payment for what he had done, and his damages for the violation of the contract, and upon

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42"When the contract is terminated by one party against the consent of the other, the latter will not be confined to the contract price, but may bring his action for a breach of the contract, and recover as damages all that he may lose by way of profits in not being allowed to fulfill the contract; or he may waive the contract and bring his action on the common counts for work and labor generally, and recover what the work done is actually worth. If the party seeks to recover more than the actual worth of his work, in a case where he has been prevented from performing the entire contract, he must resort to his action directly upon the contract; but when he elects to consider the contract rescinded, and goes upon quantum meruit, the actual value is the rule of damages."-Pratt, J., in Clark v. Mayor, 4 Comstock (4 N. Y.), 338. Contra: Doolittle v. McCullough, 12 Ohio St. 360, where it is held that the plaintiff suing in quantum meruit is restricted in his recovery to the contract rate, and Clark v. Mayor is criticised.

Where the work is performed on the plaintiff's own material, in which

that point we express no opinion. The plaintiff was allowed to recover as though there had been no countermand of the order; and in this the court erred. The defendant, by requiring the plaintiff to stop work upon the paintings, violated his contract, and thereby incurred a liability to pay such damages as the plaintiff should sustain. Such damages would include a recompense for the labor done and materials used, and such further sum in damages as might, upon legal principles, be assessed for the breach of the contract; but the plaintiff had no right, by obstinately persisting in the work, to make the penalty upon the defendant greater than it would otherwise have been.

To hold that one who employs another to do a piece of work is bound to suffer it to be done at all events, would sometimes lead to great injustice. A man may hire another to labor for a year, and within the year his situation may be such as to render the work entirely useless to him. The party employed cannot persist in working, though he is entitled to the damages consequent upon his disappointment. So if one hires another to build a house, and subsequent events put it out of his power to pay for it, it is commendable in him to stop the work, and pay for what has been done and the damages sustained by the contractor. He may be under a necessity to change his residence; but upon the rule contended for, he would be obliged to have a house which he did not need and could not use. In all such cases the just claims of the party employed are satisfied when he is fully recompensed for his part performance and indemnified for his loss in respect to the part left unexecuted; and to persist in accumulating a larger de

the defendant has no interest, it would seem that the only remedy is on the special contract in an action for damages for breach. Hosmer v. Wilson, 7 Mich. 294.

In cases where the plaintiff has fully performed his part of the contract, but the defendant refuses to perform his, the value of what the defendant promised (money, property, or services), and not the value of the plaintiff's services or property, is the measure of the recovery. Bradley v. Levy, 5 Wis. 400; Anderson v. Rice, 20 Ala. 239; Porter v. Dunn, 61 Hun, 310; S. C. 131 N. Y. 314. Contra: Hudson v. Hudson, 87 Ga. 678, where the court says: "It seems the fairest and best way of adjusting these matters is to allow the son to recover of the administrator, upon a quantum meruit, the actual value of his services, but the amount must in no event exceed the value of the home place' [promised]. A fortiori, the plaintiff cannot recover for part performance an amount in excess of that stipulated for full performance. McClair v. Austin, 17 Col. 576.

mand is not consistent with good faith towards the employer. The judgment must be reversed, and a venire de novo awarded. Judgment reversed.13

CONNOLLY v. SULLIVAN.

173 MASSACHUSETTS, 1.—1899.

Contract, to recover a balance alleged to be due plaintiff for work and labor in excavating a lot for defendant. There was an express contract under which plaintiff agreed to do the work for $750. After the work was partly done defendant directed plaintiff to stop. The plaintiff (who was losing largely under his contract) did not object to stopping work and acquiesced in the direction. The work then done was fairly worth $1200; to complete it was worth $925. Defendant had paid plaintiff $250. The worth of the

43 Accord: Dillon v. Anderson, 43 N. Y. 231; Butler v. Butler, 77 N. Y. 472; Moline Scale Co. v. Beed, 52 Ia. 307; City of Nebraska v. Nebraska &c. Coke Co., 9 Neb. 339; Davis v. Bronson, 2 N. Dak. 300; Tufts v. Lawrence, 77 Tex. 526.

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The person who has not broken his part of the compact may, at his option, extend to the person who has signified his purpose to violate the agreement, an opportunity for repentance, measured by the time to elapse between the refusal to perform and the date when performance is to commence. . . The party keeping the contract need not mitigate the damages by treating as final a premature repudiation thereof; but this is far from establishing the proposition that he may increase the amount to be paid by the other party by completing the contract after notice of repudiation, made on the day of performance, or made before that day, and never withdrawn, but, on the contrary, constantly insisted upon down to and including that day.. The question in all cases is whether one party has prevented performance by the other party at the time when performance by him is due. This can be done as well by preventing the taking of those preliminary steps, without which the final step cannot be taken, as by preventing the taking of such final step. These preliminary steps must often precede by many days the time of performance, and it therefore must follow that notice of refusal to carry out the contract, in such a case, given before the time of performance, will operate as a breach of the contract in case the time has arrived at which the person willing to keep the contract may enter upon the work under the contract."-Corliss, C. J., in Davis v. Bronson, 2 N. Dak. 300. See also for the distinction between repudiation before the time for performance begins and repudiation after such time, Kadish v. Young, 108 Ill. 170; Roebling's Sons' Co. v. Lock Stitch Fence Co., 130 Ill. 660.

work done if measured by the contract price was $425. The auditor found that if plaintiff was prevented by defendant from completing the contract he was entitled to $950 ($1200 less $250 paid); if he stopped voluntarily with defendant's consent he was entitled to $175 ($425 less $250 paid). At the trial the judge directed a verdict for $950. Defendant alleged exceptions.

MORTON, J. The exceptions in this case were not only to the refusal of the court to give the rulings which were requested, but to the ruling by which the jury were directed to return a verdict. for the plaintiff, irrespective of the contract price, for a sum which the auditor had found was the fair market value of all the work and labor performed and furnished, less what the defendant had paid on account; that is, as we understand the exceptions, the court ruled, in effect, as matter of law, against the objection of the defendant, that, on the auditor's report, the plaintiff was entitled to recover the amount for which the jury were directed to return a verdict, without regard to the contract price. The auditor's report was the only evidence in the case. It not only stated the general conclusions to which the auditor came, but it stated particular facts and circumstances relating to those conclusions, and we think that the defendant was entitled to go to the jury, if he so desired, on the question whether, upon the auditor's report, the plaintiff was prevented by the defendant from going on with the contract, or whether it was terminated with his consent, manifested in such a manner that the defendant was justified in acting upon it. Peaslee v. Ross, 143 Mass. 275; Emerson v. Patch, 129 Mass. 299; Marland v. Stanwood, 101 Mass. 470, 478.

If the former was the case, then the plaintiff would be entitled to recover, independently of the contract price, the value of the labor and materials furnished, and of which the defendant lal had the benefit; and the contract price would be important or admissible only so far as it might tend to throw light, if at all, on the value of the labor and materials actually furnished. Fitzgerald v. Allen, 128 Mass. 232.

If the latter was the case, then we think that the plaintiff's right of recovery would be limited by the contract price, and the amount. recoverable would depend on the ratio of the value of the labor and material actually furnished to what should be found to be the total cost of the work when completed according to the contract. See Veazie v. Hosmer, 11 Gray, 396; Atkins v. Barnstable, 97