Brown v. Kimball

The opinion of the court was delivered by Redfield, J. — In this case, the auditor finds that the labor, for which the plaintiff seeks to recover, was done in part performance of an entire contract between the parties for six and a half months labor, and that the plaintiff voluntarily abandoned the contract at the end of two and a half months. Whether the contract was to become absolute for the full term, if neither party elected to determine it at the end of one month, and whether the plaintiff left the employment of defendant without cause, are questions of fact within the absolute province of the auditor to determine, both of which questions he has determined against the plaintiff. Under this state of facts, it is quite impossible for the plaintiff to expect to recover. Steamboat Co. v. Wilkins, 8 Vt. R. 54. 1 Swift’s Dig. 682,683. Faxon v. Mansfield, 2 Mass. R. 147. Cut [619] ter v. Powell, 6 T. R. 321. Jennings v. Camp. 13 Johns. R. 94. In a late case it was considered that where the party, in a contract of this character, is prevented from fulfilling his undertaking by sickness, or other inevitable accident, he may recover for part performance. Fenton v. Clark, 11 Vt. R. 557. This, however, could not aid the plaintiff in this case. The judgment of the county court is affirmed.