Rogers v. Becker-Brainard Milling Machine Co.

DeCourcy, J. The' only stipulation for payment contained in the express contract was that of “one dollar and thirty-five cents per cubic yard for the amount taken out of the ledge.” When the defendant took advantage of the clause which authorized it to stop the work after one half of the rock was removed, the plaintiff had done drilling and blasting to the value of $349.92, preparatory to dislodging the remainder of the ledge. This addi 561 tional work was performed under the direction of officers of the defendant company, and especially of one Beale who was placed in charge of it by the defendant’s president. It was carried on by the plaintiff in good faith, when he had no reason to believe that the defendant intended to stop the work; and the jury must have found that it was no greater in amount than he reasonably ought to have done under the circumstances, having in mind the defendant’s right to terminate the contract. For labor and materials furnished under such a state of facts, which the defendant knew was not intended to be given gratuitously, the law implies an obligation to pay; and there is nothing in the written contract to exclude such an implication. The measure of the plaintiff’s damages is the fair value of the work which is additional to that covered by the contract. This is not a case where one has substantially but not fully performed an express contract and seeks to recover upon a quantum meruit; and cases like Hayward v. Leonard, 7 Pick. 181, cited by the defendant, are not applicable. It may be that the work in question is of little immediate value to the defendant, but this is due to its failure to give timely notice of its decision to remove only a portion of the stone, and cannot lessen the amount to which the plaintiff is entitled. Stowe v. Buttrick, 125 Mass. 449. Fitzgerald v. Allen, 128 Mass. 232. Vickery v. Ritchie, 202 Mass. 247. Exceptions overruled.