Roundy v. Thatcher , 49 N.H. 526 ( 1870 )

Bellows, C. J.

The contract not having been performed on the part of the plaintiff, it is clear, that he could not maintain a suit for the breach of that, but his remedy if he have any, is by general assumpsit.

The compensation is not earned under the special contract, bnt the plaintiff must stand upon the ground, that a beneficial service has been rendered, which the defendant has accepted and received and for which the law will imply a promise to pay, as in the case of a promise to sell and deliver a certain quantity of wheat at a price fixed, and a delivery of a part only, and a failure to deliver the rest. Here if the vendee accepts and retains the part deliveied, the law will imply a promise to pay for it, at a price not exceeding, however, the price stipulated in the contract, but subject to the deduction of an amount equal to the damages occasioned by the neglect to deliver the remainder of the wheat. In this way, justice may be done and the rights of the parties determined in one suit, if the defendant so elects.

The contract having been broken by the plaintiff, ho cannot enforce it, nor can the defendant set it up to defeat the recovery of a reasonable compensation for what he has actually received. He may, however, introduce it to limit the price of the goods or services, which cannot exceed the prices fixed in the contract; and so if the time of payment is fixed by it the plaintiff cannot sue until that time has arrived. Britton v. Turner, 6 N. H. 481; Hartwell v. Jewett, 9 N. H. 249 ; Thompson v. Phelan, 22 N. H. 347-8; Davis v. Barrington, 30 N. H. 530. So if it be expressly agreed that nothing shall be paid until the contract is fully performed, then the law will not, against such express stipulation imply a promise to pay for a part: see the cases above cited. Upon the same principle, it would seem, that if the contract was to pay in a particular way, as in certain stocks, in land, or other specific articles, the law would not imply a promise, in case of a part performance, to pay in money. In the case before us, the compensation for the stipulated service was to be made by board, clothing, and schooling furnished to the son. There was no agreement to pay the father any money, or any thins: else. It does not appear, that the contract had been broken by the defendant, and for aught that is shown, he had furnished the board, clothing and schooling according to the contract.

The finding of the auditor, that the services of the son were twenty dollars and thirty-throe cents more in value than the sum expended by the defendant for clothing, and the damages occasioned by the son’s fiiilure to complete the contract is consistent, perfectly, with the fact, that defendant had paid and done all he agreed to do. He was to board, clothe and school the son, and that was to be a full compensation for his services. The auditor finds, that his services were worth more than he received during this time, but if defendant did all he agreed to do for those services, the plaintiff can recover no more, even if those services were worth more, for the plaintiff could not recover for the part performance, anything beyond the stipulated rate, of compensation. It does not appear from the auditor’s report, that defendant has not made the compensation for the services rendered that was provided for by the contract, and we think the plaintiff is not entitled to recover.

Had it appeared that the sum found by the auditor was after the stipulated rate, and that had not been paid, the question would have arisen,whether, when by the agreement the compensation for the services of the son was to be by his board, clothing and schooling, the law would imply a promise, to pay for a part of those services in money.

As we have seen, if it be expressly agreed, that nothing shall be paid until the whole is earned, a suit caunot be maintained when there has been only a part performance by the plaintiff. Britton v. Turner, before cited, and so is Page v. Marsh, 36 N. H. 305, and so if a time of payment is fixed by the agreement a suit cannot be maintained before that time has arrived, nor can the plaintiff recover any more than after the rate of the contract price. It seems, then, that although the plaintiff in such cases caunot enforce the contract, and must go upon an implied assumpsit to pay for what the defendant has received and accepted under it, and although the defendant cannot in general set up such contract to defeat wholly the plaintiff’s claim for a reasonable compensation for the benefits actually received by the defendant, yet he may set it up to limit the rate of compensation and the time of payment. Upon the same principle, we pei’ceive no reason for its not being used to limit the mode of payment.

In the case before us, the compensation was to be made to the son in board, clothing and schooling ; and when the defendant accepted the services from time to time it was upon the understanding, that they were to be paid for in that way to the son, and not to the father, and it would, I think, be contrary to the spirit of our decision on this subject, to hold that the law would imply a promise to pay the father iii money, the reasonable value of those services.

If the contract was to pay the plaintiff in something besides money, which was divisible in its nature, and the defendant had refused to pay in that way, after a part performance by the plaintiff and the abandonment of the rest and notice thereof, a different question would be raised, which we are not called upon to settle : but to imply a promise to pay the plaintiff in money, when the agreement was, to pay .the son in board, clothing and schooling, would be to imply a promise not only without evidence to support it, but clearly contrary to the express stipulation-of the parties, and when, as in this'case, there is no proof or suggestion that defendant has refused to make compensation in the manner stipulated, it would be, we think, altogether anomalous, to imply a promise to pay .the plaintiff in money.

The principle of Britton v. Turner has, it is true, been repeatedly recognized in this state, but not in a way to indicate a disposition to extend it. See Laton v. King, 19 N. H. 280, and Davis v. Barrington, 30 N. H. 517.

■ We think, however, that the general principle of Britton v. Turner, is sound and equitable, but it would be a departure- from it to imply a promise to pay for a part performance of an entire contract in money, when by the express terms of the contract, it was to be paid in a totally different way..

Judgment for defendant.