Pixler v. Nichols

Stockton, J. We think the instructions were rightfully refused. If the parties had expressly agreed, that if the plaintiff left the service of the defendant, before the expiration of the time limited, nothing was to be considered as earned by him, there- could be no doubt that the plaintiff could not recover. But where all that is shown is, that upon an agreement to labor for six months, the plaintiff labors four months, and refuses to labor any longer, and sues for the value of the labor performed, we think he is entitled to re [108] cover, as upon a quantum meruit; and need not, as a condition precedent, first show that he had performed his entire contract, or that he left the service of his employer upon good cause. ’We are satisfied with the rule established in Britton v. Turner, 6 N. H. 481, giving its fall weight, for the protection of the employer in such cases, to the qualifying rule, that where the contract is broken' by the fault of the party employed, after part performance has been received, the employer is entitled, if he so elect, to put the breach of contract in defense, for the purpose of reducing the damages, or showing that nothing is due, and to deduct what it will reasonably cost to secure a completion of the whole service, as well as any damage sustained by reason of the non-fulfilment of the contract. If, in such case, it is found that the damages are equal to, or greater than, the value of the labor performed, and that the employer^ having a right to the performance of fhe whole contract, has not received any beneficial service, the plaintiff is not entitled to recover. Judgment affirmed.