Brown v. Woodbury

Hammond, J. 1. The declaration contained two counts, the first based upon an affirmance of the contract, the second upon a disaffirmance of it. At the close of the evidence the defendants asked for a ruling that the plaintiff not having waived the first count, but having relied on it throughout the trial, could not recover upon the second count, but could recover, if at all, only upon the first, and further that the plaintiff at that stage of the case could not elect to waive the first count and to rely only upon the second. The judge refused thus to rule, but having ruled that the plaintiff could not go to the jury on both counts, allowed him to strike out the first and to press his case on the second. The ruling was correct. Mullaly v. Austin, 97 Mass. 30, 33, ad finem. Whiteside v. Brawley, 152 Mass. 133, and cases cited. See also National Granite Bank v. Tyndale, 179 Mass. 390. Linningdale v. Livingston, 10 Johns. 36. 2. The instructions to the jury were also correct. Under these instructions the jury must have found that the special contract of employment was terminated by the defendants by the discharge of the plaintiff without cause and against his will, [282] whereby it was impossible for the plaintiff to perform the agreement on his part. The defendants not only broke the contract on their part, but they made it impossible for the plaintiff to perform his part. In such a case the innocent party may either sue upon the contract for damages for the breach, or, if he so elects, he may regard the action of the defendants as indicating a purpose on their part to repudiate the contract, may accept the repudiation, and recover upon a quantum meruit the value of his services, as if the special contract had not existed. For cases where this last rule has been applied in England, see Planché v. Colburn, 8 Bing. 14; Goodman v. Pocock, 15 Q. B. 576; and the authorities cited in the note to Cutter v. Powell, 2 Smith Lead. Cas. (9th Am. ed.) 1212, 1245, et seq. Although in this country there appears to be a conflict on this question among the authorities, (see Derby v. Johnson, 21 Vt. 17, and Doolittle v. McCullough, 12 Ohio St. 360,) still, in this State the matter seems to have been covered by our previous decisions, in which the English rule is recognized and followed. Fitzgerald v. Allen, 128 Mass. 232. Cook v. Gray, 133 Mass. 106, 111. Connolly v. Sullivan, 173 Mass. 1. The defendants further contend that the plaintiff, having-received the benefit of the board of his father and mother for several months, cannot now avail himself of this rule. But this board was in part payment of the work done by the plaintiff, and whether the action be upon the contract or on quantum meruit, the plaintiff is equally entitled to it. Part payment in money would not bar the plaintiff from the action on quantum meruit, Cook v. Gray and Connolly v. Sullivan, ubi supra, and in principle part payment in board can have no different effect. In the opinion of a majority of the court the rulings were right. Exceptions overruled.