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crease the damages to be recovered for the breach of the contract.1 the contrary, it is his duty to take care to diminish the amount of the damages, as far as he can without injury to himself."

§ 436. An infant who engages to work for a certain length of time, may rescind the contract and recover the value of the services rendered by him; and the value of these services is to be ascertained without any reference to the contract. The master of an apprentice being entitled to his carnings, may recover them of the person for whom the services were rendered, even where the employer had no knowledge of the apprenticeship. But in the action for enticing a minor son or an apprentice from the service of his father or master, knowledge of the relation as still subsisting must be shown, and the fact of enticement from the service due to the plaintiff.5

§ 437. Under an agreement to work for so many days or months, for a compensation which expressly or impliedly becomes due at the end of the service, the work must be performed before any compensation can be recovered; the contract being entire, performance is a condition precedent to the right of recovery. The laborer must perform his contract, like any other person; and where he performs only a part of it, and then without cause or the consent or fault of the other party, abandons the work, he cannot recover on an implied assumpsit for the labor actually performed. And the rule is the same where he engages to perform an entire job of work." Rough language from the employer does not release the laborer from his contract; or from his duty to obey lawful and reasonable commands." And though the contract be invalid because not in writing, the laborer is not at liberty to quit and recover for the services rendered, so long as the employer fulfills the agreement on his part.

'Clark v. Marsiglia, 1 Denio, 317 ; Goodwin v. Kirker, 2 Hilton, 401.

2 Wilson v. Martin, 1 Denio, 602, 605; 28 N. Y., 72, 77 ; Hamilton v. McPher son, and Dillon v. Anderson, 43 N. Y., 231, 237; 7 Hill, G1.

3 Whitmarsh v. Hall, 3 Denio, 375; Derocher v. Continental Mills, 58 Me., 217; 4 Amer. R., 285; Vent v. Osgood, 19 Pick., 572.

James v. Le Roy, 6 John. R., 274; Hiatt v. Gilmer, 6 Ind., 450; Munsey v. Goodwin, 3 N. H., 272.

'Caughey v. Smith, 47 N. Y., 244; Butterfield v. Ashley, 6 Cush., 249.

6 McMillan v. Vanderlip, 12 John., 165; Jennings v. Camp, 13 John., 95; Lantry v. Parks, 8 Cow., 63; Monell v. Burns, 4 Denio, 121; Reab v. Moor, 19 John. R., 337. He cannot recover where he is dismissed for cause, before he is entitled to any wages under the contract; Huntingdon v. Claflin, 10 Bosw., 262; S. C., 38 N. Y., 182.

'Marsh v. Rulesson, 1 Wend., 514.

8 Galvin v.

Prentice, 45 N. Y., 162, contract for two years, invalid under the

statute of frauds.

On a default or refusal by the employer to go on, a recovery may be had for the services rendered.1

Under an agreement for a year's services, providing for a payment of wages monthly or quarterly, the employee may recover the wages earned and payable under the contract, without showing a subsequent full performance; and where he quits without cause before the end of the year, he recovers the amount which has become payable under the contract, less the damages sustained by the breach of it. And the same rule applies where the parties have adjusted the amount earned, and the cmployer has given his note therefor, prior to the end of the term.2

§ 438. Under a contract for a year's personal service, a failure to perform on account of sickness or death relieves the employee from the terms of the contract; and the law gives him or his legal representativo a right to recover the value of the services rendered. The act of God excuses performance of a condition; so does the act of the law; and where valuable services have been rendered under the contract, the employee recovers upon a quantum meruit.3 The law does not and cannot give him the benefit of an actual performance; it proceeds rather upon the theory of an implied understanding, that the party shall be excused in case he is unable to render his personal services according to the contract. Where the services are of such a nature that they can be, and they are performed for him by another, he may recover the stipulated compensation.; as he may, pro rata, where that appears to be the fair value of his services.

5

The contractor may also recover where performance of the work is hindered or delayed by the employer or by those in his service, or left unfinished at his request. If one contractor delays the work of another, the delay is attributable to the employer, and is therefore excused; as it

1 Monroe v. Butt, 8 Ellis & B., 738.

2 Thorp v. White, 13 John. R., 53; Hoor v. Clute, 15 John. R., 224; Oviatt v. Hughes, 41 Barb., 541 ; Walker v. Millard, 29 N. Y., 375; Heim v. Wolf, 1 E. D. Smith, 70.

3 Fahy v. North, 19 Barb., 341 ; Fenton v. Clark, 11 Vt., 557 ; Fuller v. Brown, 11 Metc., 440; Wolf v. Howes, 24 Barb., 174, 666; S. C., 20 N. Y., 197; Jones v. Judd, 4 N. Y., 411; People v. Manning, 8 Cowen, 297; Carpenter v. Stevens, 12 Wend., 589.

4 Tompkins v. Dudley, 25 N. Y., 272; Dexter v. Norton, 47 N. Y., 62.

Gray v. Murray, 3 John. Ch., 167, 179.

Clark v. Gilbert, 26 N. Y., 279; 5 Mich., 449; 27 Vt., 759.

Devlin v. Second Ave. R. R. Co., 44 Barb., 81.; Farnham v. Ross, 2 Hall, 167; Van Buskirk v. Stow, 42 Barb., 9; Russell v. Da Bandiera, 13 Com. B. N. S., 148. When the agreement so provides, the delay of one contractor will not ex cuse another; Shute v. Hamilton, 3 Daly, 462.

is where the employer orders a change in the amount or mode of the work, and so delays its completion.'

§ 439. Each party must perform in the order of time required by the contract; and where by its terms the work is to be commenced under the employer's direction, and for want of timely directions the contractor is prevented from performing the work within the stipulated time, and subsequently does the work at an expense enhanced in consequence of the delay, he is not obliged under the old practice to bring his action upon the contract, but may resort to the quantum meruit to obtain his indemnity. Under the Code he alleges all the facts, the contract, the delay and the increase of the expense caused by the delay; and recovers damages for a breach of the contract.3 Being prevented from fulfilling the contract, after partly performing it, he is entitled to recover ratably the stipulated compensation, or damages for a breach of the agreement.' And where the contract is departed from by mutual consent, the work being partly done under its terms and partly in a deviation from them, the payment is to be made according to the agreement as far as it can be traced; and beyond that according to the true value of the work."

When the contractor abandons the contract while the work is in progress on account of the employer's failure to furnish the materials in season, he recovers the contract prices for the work done, unless it is shown that the work was rendered more expensive by the delay. Being compelled to do the work at additional expense in a less favorable season, he may recover what his work was reasonably worth; in other words, he recovers the contract prices where he works under the contract, with such additional expenses as he incurs by the delay. This appears to be tho just and legal measure of damages.

§ 440. When the work is to be finished by a given time and the contractor fails to fulfill his stipulation in that respect, the employer does not waive his right of action for damages by permitting the work to go on

1 Stewart v. Keteltas, 36 N. Y., 398; 42 Barb., 9.

2 Dubois v. Del. & Hudson Canal Co., 4 Wend. R., 285 ; S. C., 12 Wend., 334; 15 Wend., 87.

3 Allamon v. Mayor &c. of Albany, 43 Barb., 33; he must perform or show excuse for his failure. White v. Hewitt, 1 E. D. Smith, 395; Oakley v. Morton, 11 N. Y., 25; 4 Duer, 295.

4 Jones v. Judd, 4 N. Y., 411; Clark v. Mayor, &c., of New York, 4 N. Y., 338.

Hollinsead v. Mactier, 12 Wend., 275; Clark v. Mayor, &c., of New York, 3 Barb., 288; 4 N. Y., 338; Van Buskirk v. Stow, 42 Barb., 9.

6 Koon v. Greeuman, 7 Wend., 121; Meyer v. Hallock, 2 Robt., 284. When the employer orders the work stopped, the contractor may and must stop it. Goodwin v. Kircker, 2 Hilton, 401.

after a breach; nor does he preclude himself from setting up the damages sustained by him by way of recoupment, when sued for the work and services a recoupment being considered in law as a partial defence, to be pleaded. A general denial in an action for services, puts in issue the fact of a substantial performance. A waiver of strict performance as the work goes on, and a tacit extension of the time of performance, will be deemed a waiver of damages on account of such defect or failure in fulfilling the contract. So a departure from the terms of the contract at the request of the employer, excuses performance within the time; and the giving of an acceptance or note for work done under a contract, not called for by its terms, modifies the contract in that respect; it changes the time of payment. A payment on account of the work done has the same effect; it cannot be recovered back where the work actually rendered exceeds the payment in value.7

5

§ 441. No action can be maintained for services rendered for a man without his privity or request; as where services are rendered voluntarily to preserve a neighbor's house from destruction by fire; or where services are rendered under circumstances which exclude and repel the theory of an implied promise to pay for them." Measuring the premises and procuring estimates with a view to make an offer to erect a building are not regarded as services rendered on a request.10 Voluntary services rendered by the finder of goods in their preservation are considered meritorious, and ought to be paid for; and it is thought the owner becomes legally bound to pay for them, on taking back the goods thereby preserved." The law does not imply a contract to pay for board or for services rendered between members of the same family, inasmuch as the relation often exists, and is frequently continued after children come

1 Barber v. Rose, Hill, 76; McKnight v. Dunlop, 5 N. Y. (1 Seld.), 537, 544; 11 N. Y., 347, 351; Whitbeck v. Skinner, 7 Hill, 53.

2 McCullough v. Cox, 6 Barb., 386; Willis v. Taggard, 6 How. Pr., 433; 10How. Pr., 71; Eldridge v. Mather, 2 N. Y., 157; Gillespie v. Torrence, 25 N. Y., 306, 309.

614.

3 Bellinger v. Craigue, 31 Barb., 534.

4 Meehan v. Williams, 2 Daly, 367; 42 Barb., 9; Smith v. Gugerty, 4 Barb.,

Green v. Haines, 1 Hilton, 254.

6 Walker v. Millard, 29 N. Y., 375. Sickels v. Pattison, 14 Wend., 257.

• Bartholomew v. Jackson, 20 John. R., 28.

9 Livingston v. Ackeston, 5 Cow., 531; Demyer v. Souzer, 6 Wend., 436.

10 Topping v. Swords, 1 E. D. Smith, 609.

11 See Sheldon v. Sherman, 42 N. Y., 484; S. C., 42 BARB., 368; Redu v. Anderson, 4 Dana, 193; ante § 20.

of age, where there is no understanding or expectation of the kind.' The law infers or refuses to imply a contract, according to the actual intention of the parties; and it gathers the evidence of the intent from the language and conduct of the parties. It infers a contract from a mutual understanding that the services were to be compensated by a legacy or by the devise of a farm.3 It does not make, it ascertains and enforces the agreement; and where it appears that the compensation was to be made by will, and none is actually made, the value of the services may be recovered. The implied contract takes effect and form from the circumstances."

5

§ 442. Under a contract for the manufacture or construction of an article, the work must be done according to the agreement, before the employer can be compelled to accept it; and where he accepts and uses it, though unfinished, he must pay for it the stipulated price, after deducting the cost of the work left undone. The article being made under specifications, prescribing the dimensions and structure, and delivered in apparent conformity with the contract, an acceptance of the article without complaint and without any subsequent offer to return it, is conclusive; the employer cannot afterward refuse to pay the purchase money. Having offered to return the article within a reasonable time, he may recover his damages."

After a mechanic has finished a carriage for a customer according to bis contract, and tendered a delivery of it, he is entitled to recover the price agreed upon; or he may sell it, and recover the difference between the contract price and the actual sale.

§ 443. Bailments for Services resumed. Excluding one feature from the contract of bailment for labor and services, namely, the delivery of the goods, and the contract is to be enforced like an ordinary agreement; and hence where the property is lost by accident or destroyed by fire,

1 Williams v. Hutchinson, 3 N. Y., 312; Cropsey v. Sweeney, 27 Barb., 310; Robinson v. Cushman, 2 Denio, 149; Lunay v. Vantine, 40 Vt., 501.

2 Whiting v. Sullivan, 7 Mass., 107; Updike v. Ten Broeck, 3 Vroom, N. J., 105.

3 Robinson v. Rayner, 28 N. Y., 494; Martin v. Wright, 13 Wend., 400; Eaton v. Benton, 2 Hill, 576.

4 Smith v. Velie, 60 N. Y., 106.

Vanderbilt v. Eagle Iron Works, 25 Wend., 665.

Neaffio v. Hart, 4 Lans., 4; Howard v. Hocy, 23 Wend., 350; Reed v. Randall, 29 N. Y., 358.

7 Messmore v. Tho N. Y. Shot & Lead Co., 40 N. Y., 422. As to the nature of the contract, see ante § § 411, 412, 413.

Bement v. Smith, 15 Wend., 493; 16 N. Y., 582, 585; Pollen v. Le Roy, 30 N. Y., 549; 10 Bosw., 130, 135; 58 Barb.. 448.