Green v. Hulett

[190] The opinion of the court was delivered by Poland, J. The defendant insists, that inasmuch as the plaintiff contracted to work for him for the term of seven months, and the contract was entire, and the plaintiff left before the expiration of the full term, he is therefore precluded from any recovery for that portion of the time he actually worked, and that the case is brought within the decisions in St. Albans Steamboat Co. v. Wilkins, 8 Vt. 54, Brown v. Kimball, 12 Vt. 617, Ripley v. Chipman, 13 Vt. 268, and other cases to the same point. If the plaintiff voluntarily abandoned the contract, without any good cause, this position would doubtless be correct. But the auditor reports, that on the day the plaintiff left, the defendant had an altercation with the plaintiff, and, without any fault on the part of the plaintiff, or any just cause for so doing, ordered the plaintiff to leave his service and .employment. The doctrine of entire contracts was never, we apprehend, carried to the extent of prohibiting any recovery for a part performance, when the performance of the whole was prevented by the act of the defendant. The defendant, however, insists, in this case, that, as the plaintiff did not act immediately upon this order to leave, but ¡remained until after dinner, and worked an hour or two, he must be deemed to have waived this discharge by the defendant, and to have left without cause, and so forfeited all claim to payment for his services. This view of the case does not appear to us to be well founded upon the facts, as reported by the auditor. It would seem more proper, that the defendant should have retracted his order to the plaintiff to leave, before the plaintiff went away, if he desired Mm to remain, than to hold, that he might keep silent until the plaintiff had left, and then insist upon a forfeiture of his wages. Neither do we see, that the case is altered by the fact, that on Monday the plaintiff gave an additional reason, why he refused to return into the defendant’s service, or that this should have any effect to prevent his recovery. If the defendant had absolved the plaintiff from any farther obligation to perform the contract, as we think he did on Saturday, it made no difference, what reasons he gave for his refusal to return to his service on Monday. The ancient, rigorous doctrine, in relation to contracts of this kind, has been much [191] modified by the decisions made within a few years; and a party is not allowed to claim the benefit of any such forfeiture, except when there has been a clear breach shown on the part of the party who has performed the service. From the facts reported we think, the auditor correctly allowed the plaintiff for his labor, and the judgment of the county court accepting his report is affirmed.