Walsh and others vs. Fisher. verdict aside, as contrary to the evidence, the defendants. below brought their writ of error. A. T. Rock, for the plaintiffs in error. For the defendant in error there was a brief by O'Brien & Vaughn, and oral argument by P. H. O'Brien. They argued, inter alia, that the plaintiff's assignor having been prevented from fully performing his contract without the fault of either party, could recover for the work done under it upon an implied assumpsit. 1 Beach, Modern Law.of Contracts, $228; Parker v. Macomber, 17 R. I. 674; Cutter v. Powell, 6 Term, 320; Bream v. Marsh, 4 Leigh, 21; Haynes v. Second Baptist Church, 12 Mo. App. 536; Carpenter v. Gay, 12 R. I. 306; Farrow v. Wilson, L. R. 4 C. P. 744. A strike of workmen is no excuse for the failure to perform a contract, but where the workmen abandon their work, and by violence and intimidation prevent other employees who are ready and willing to work from doing so, then this ceases to be a strike. Geismer v. L. S. & M. S. R. Co. 102 N. Y. 563; 1 Beach, Mod. Law of Cont. § 238; Pittsburgh, Ft. W. & C. R. Co. v. Hazen, 84 Ill. 36; Pittsburgh, C. & St. L. R. Co. v. Hollowell, 65 Ind. 188; Lake Shore & M. S. R. Co. v. Bennett, 6 Am. & Eng. R. Cas. 391; Indianapolis & St. L. R. Co. v. Juntgen, 10 Ill. App. 295. WINSLOW, J. The question which was sharply litigated in this case was whether McKillop quit because of genuine and justifiable fear of serious bodily violence at the hands of the hourly men who had struck, or because of the agreement or resolution of the day men to strike at noon of the 9th of July, unless the demands of the hourly men were acceded to. There was evidence which would justify a finding either way on these propositions. Certainly, there were ample facts. which would justify the conclusion that McKillop quit because he choose to abide by the resolution, or, in other words, that he was in fact one of the second set of strikers. If such VOL 102-12 Walsh and others vs. Fisher. were the case, no recovery could be had, because his contract was entire and he voluntarily abandoned his work, without valid excuse, before the end of the stipulated time. Koplitz v. Powell, 56 Wis. 671. This proposition of law was substantially correctly stated in the following instruction, which was offered by the defendant: "You are instructed that if Mr. McKillop left his work, under and pursuant to the agreement of the day men and the hourly men on the night of July 8, 1896,— that is, to quit at noon, July 9th, if defendants did not concede to the proposition submitted to them on July 8th, then plaintiff cannot recover, and your verdict shall be for the defendants." The court read this instruction to the jury, and added the following words: "That is, if that was the reason he quit, and the danger was not such that the danger or apparent danger was not such that the man of ordinary nerve would have refused or declined to go on with the work, your verdict will be for the defendants." We think that the addition of this limitation to the instruction was error. Irrespective of the statute which requires an instruction to be given as asked or refused in full (R. S. 1878, sec. 2853), we think the plaintiffs in error were certainly entitled to have the instruction which they asked given without dilution or qualification. The proposition was that, if Mr. McKillop quit in pursuance of the agreement to strike, he could not recover, and the jury should have been so informed plainly and directly, without being required to determine, in addition, what would have been the condition of mind of a hypothetical man who perhaps had entered into no agreement to strike. The last clause added a confusing element to a simple proposition, and it was error to attach it to the instruction as asked. A more important and vital question, however, is yet to be considered. There was a motion to direct a verdict for Walsh and others vs. Fisher. the plaintiffs in error, which was overruled and exception taken; and this raises the question whether, in any view of the case, the defendant in error is entitled to recover. It seems to have been assumed upon the trial below, and upon the argument in this court, that, if McKillop was excused in leaving the defendant's service on account of the threats of strikers to do him bodily harm, he can recover for the time of his actual service, without deduction for damages suffered by the master by reason of his breach of contract. Such is certainly not the law. If a servant is prevented from performing his contract by the act or fault of the master, the master cannot, of course, recover or recoup any damages, because the breach is his own. Wood, Master & S. (2d ed.), $148. But, in case the servant is prevented from fulfilling his contract for personal services by his own sickness, this is not the fault or act of the master, and while the servant will generally be excused from fulfilling his contract and be entitled to recover for the labor performed up to the time of his sickness, the master will be entitled to counterclaim his damages for the breach of contract, for which he (the master) was not responsible. The justice of the rule is apparent on a moment's reflection. Wood, Master & S. (2d ed.), § 122. Now, it may well be that McKillop would be justified in quitting if the danger of bodily injury was real and imminent, and the threats of the strikers were so serious that a reasonable man in McKillop's situation would have been justified in believing that he was in imminent danger if he continued to work; for it can hardly be claimed that a man must daily carry his life in his hand in such a manner. Still, this condition of things was a condition for which the master was in no way responsible. If it operated to relieve McKillop from his obligation to work the entire season, still it manifestly could not operate to give him any greater right against his employer than as though he had been relieved of Walsh and others vs. Fisher. his contract by sickness or vis major, for which his employer was not responsible. It is still the employee, and not the employer, who breaks the contract; and the rule that the party who breaks an entire contract shall have no recovery by reason of his part performance of it is relaxed only to the extent of permitting recovery of compensation for the actual benefit conferred upon the employer, or, as more usually expressed, by allowing the employee the value of his services after deducting the damages, if any, suffered by the employer by reason of the breach of the entire contract. Wood, Master & S. § 122; Fenton v. Clark, 11 Vt. 557; Hubbard v. Belden, 27 Vt. 645; Patrick v. Putnam, 27 Vt. 759; Ryan v. Dayton, 25 Conn. 188; Wolfe v. Howes, 20 N. Y. 197-203; Clark v. Gilbert, 26 N. Y. 279; Allen v. McKibbin, 5 Mich. 449-455. In the last-cited case (Allen v. McKibbin) the court tersely states the rule as to the measure of recovery thus: "Without reviewing the cases in detail, we think that the only rule which harmonizes them may be laid down substantially as follows: The defaulting plaintiff can in no case recover more than the contract price, and cannot recover that if his work is not reasonably worth it, or if, by paying it, the rest of the work will cost the defendant more than if the whole had been completed under the contract. The party in default can never gain by his default, and the other party can never be permitted to lose by it; and the price thus determined is the true amount recoverable on a quantum meruit." The recovery, then, in the most favorable aspect of the case, is limited to the amount of McKillop's wages at the agreed rate, less any damages resulting to the employer from the termination of the contract. Those damages are stipulated and fixed. The language used in the written agreement is apt, and clearly expresses the understanding that the damages recoverable for a termination thereof shall be fifteen days' wages. The consequences of a ter Webster and others vs. Douglas County and others. mination of this contract of employment were eminently of the character to justify stipulation of the damages in advance. Uncertainty as to the possibility and expense of finding another employee, and as to the wages to be paid if one be found; uncertainty as to the extent of interruption or embarrassment of the numerous other employees, joined with the uncertain, but possibly very large, liability to vessel own- . ers or shippers which might be imposed upon defendants by interruption of their work, the apportionment of which damages to each, should several of the contracting employees quit at once, would be extremely difficult and intricate,— all these elements bring the situation within the rule adopted in Berrinkott v. Traphagen, 39 Wis. 219, 226. The damages stipulated by the contract equal the amount of the defendant in error's demand, and therefore, upon the most favorable view of the evidence, preclude any recovery. A verdict for the plaintiffs in error should have been directed, and the verdict for the defendant in error should have been set aside. By the Court.-Judgment reversed, and action remanded for a new trial. BARDEEN, J., took no part. WEBSTER and others, Appellants, vs. DOUGLAS COUNTY and others, Respondents. December 19, 1898-February 21, 1899. Public officers: Injunction against illegal payments: Compelling repayment: Action by taxpayers: Laches: Innocent purchasers of warrants: Counties: Limitation on highway expenditures: Violation of injunction: Interest: Costs. 1. A taxpayer may maintain an action in equity, on behalf of himself and all other taxpayers, to restrain public officers from paying out the public money for illegal purposes, and may also, under the |