to saying, 'I will not perform my part of the contract,' and this is an answer to the present action." On the same principle was decided Planché v. Coiburn, 8 Bingh. 14, the facts of which will be presently stated.

It being, therefore, established, that where one contractor has absolutely refused to perform, or rendered himself incapable of performing, his part of the contract, the other contractor may, if he please, rescind, such act or such refusal being equivalent to a consent to the rescision; the remaining part of the proposition above stated is, that upon such rescision he has a right, if he have done anything under the contract, to sue immediately for compensation on a quantum meruit. That he should do so is consistent with reason and justice, for it is clear that the defendant cannot be allowed to take advantage of his own wrong, and screen himself from payment for what has been done by his own tortious refusal to perform his part of the contract, which refusal alone has enabled the plaintiff to rescind it. He cannot, however, recover on the special contract, and must, therefore, be entitled to sue upon a quantum meruit, founded on a promise implied by law, on the part of the defendant, to remunerate him for what he has done at his request; and, as an action on a quantum meruit is founded on a promise to pay on request, and there is no ground for implying any other sort of promise, he may, of course, bring his action immediately. This point is decided by Planché v. Colburn and another, 8 Bingh. 14. The declaration in that case stated that the defendants had engaged the plaintiff for 1007. to write a treatise on Costume and Ancient Armour, to be published in "The Juvenile Library," that the plaintiff had written part, and was willing to complete and deliver the whole for insertion in that publication; but that the defendants would not publish it there, nor pay the sum of 100%. There was also the common count for work and labour.

At the trial it appeared that the plaintiff had been engaged on the terms above stated, that he had completed part of his work, that he had made a journey in order to inspect a collection of ancient

armour, and made drawings therefrom: but that he had never tendered or delivered his performance to the defendants, they having finally abandoned the publication of " The Juvenile Library," on the ill success of some of the first numbers of the work.

The jury having found a verdict for the plaintiff with 50%. damages, the court was moved for a new trial. It was contended, that the plaintiff could not recover on the special contract, since he had not tendered or delivered his work, and that he could not recover on the indebitatus count for work and labour, because the special contract was still open. The court, however, refused the new trial, holding that, as the defendants had, by putting an end to "The Juvenile Library," incapacitated themselves from performing their engagement with the plaintiff to publish his work there, they must be taken to have abandoned the contract altogether; and that he might recover for what he had done, "The fact was," upon a quantum meruil. said Tindal, L. C. J., "that the defendants not only suspended, but actually put an end to The Juvenile Library.' They had broken their contract with the plaintiff; and an attempt was made, but quite unsuccessfully, to show that the plaintiff had afterwards entered into a new contract to allow them to publish his book as a separate work. I agree that when a special contract is in existence and open, the plaintiff' cannot sue on a quantum meruit: part of the question, therefore, here was, whether the contract did exist or not. It distinctly appeared, that the work was finally abandoned, and the jury found that no new contract had been entered into. Under these circumstances, the plaintiff ought not to lose the fruit of his labour, and there is no ground for the application that has been made."

There is a class of cases which appear at first sight exactly similar to Planché v. Colburn and Robson v. Drummond, but which will be found, on closer inspection, to be distinguished by a peculiarity which it may be useful here to remark. I allude to those cases in which a servant, who has engaged to serve for a certain time at certain wages, is turned away by his master before the period for which he had en

gaged to serve has expired. In such case it is clear that, if his dismissal be in consequence of his own misconduct, he will be entitled to no wages, for his faithful service is a condition precedent to his right to them, and that condition he has not performed, Turner v. Robinson, 6 C. & P. 15; 5 B. & Ad. 789. But, if the dismissal be unjust, the master cannot by his wrongful discharge prevent the servant from recovering due compensation. Such a case seems to range itself under the rule we have been just discussing. The master has absolutely refused to perform his contract with the servant, and it is apprehended that the servant has thereupon a right to rescind it, and to sue upon a quantum meruit for what he has already done under it. But though he may rescind the contract, he is not, it would seem, obliged to do so. He has a right, it would seem, to consider it still in existence, to treat the wrongful dismissal as no dismissal at all, and to demand, at the expiration of the time for which he was hired, the whole of his stipulated wages,-not on a quantum meruit, but by virtue of the special contract, his own part of which he may then safely aver that he has performed, his readiness to serve during the rest of the term being considered equivalent in law to actual service; and it has been thought that he may sue in indebitatus assumpsit, that being no more than any creditor may do upon an executed special contract, and his action, though not special in its form, being still upon the special contract and supported by the same evidence by which a special count would be substantiated. Gandell v. Pontigny, 4 Campb. 375, is a direct authority in favour of these positions. That was an action brought by a clerk for his whole quarter's salary against his master, who had wrongfully dismissed him in the middle of a quarter; the declaration only contained the common count for work and labour. Lord Ellenborough: "If the plaintiff was discharged without a sufficient cause, I think this action maintainable. Having served a part of the quarter, and being willing to serve the residue, in contemplation of law he may be considered to have served the whole. The defendant was therefore indebted to him for work and labour in the

sum sought to be recovered." This peculiarity in the case of servants and agents wrongfully dismissed, results altogether from the doctrine of constructive service, which originated in decisions on the law of settlement; and though it may be applicable to some other cases (see Collins v. Price, 5 Bingh.132), it seems difficult to understand how it can be rationally applied to most other cases of special contract. For instance, in Planché v. Colburn it would have been impossible for Mr. Planché, with much show of reason, to contend that he had constructively written the whole treatise on armour, when, in point of fact, he only had finished half of it. It has, however, been applied to cases of servants, clerks, and agents; and perhaps, therefore, the result of the authorities on this subject may be, that a clerk, servant, or agent, wrongfully dismissed, has his election of three remedies: viz., that, I. He may bring a special action for his master's breach of contract in dismissing him, and this remedy he may pursue immediately. Pagani v. Gandolfi, 2 C. & P. 370. 2. He may wait till the termination of the period for which he was hired, and may then perhaps, sue for his whole wages, in indebitatus assumpsit, relying on the doctrine of constructive service, Gandell v. Pontigny; and see Collins v. Price, 5 Bingh. 132; vide tamen the observations of the judges in Smith v. Hayward, post. 3. He may treat the contract as rescinded, and may immediately sue, on a quantum meruit, for the work he actually performed, Planché v. Colburn; but, in that case, as he sues on an implied contract arising out of actual services, he can only recover for the time that he actually served. This last was the point really decided by Lord Tenterden, in Archard v. Horner, 3 C. & P. 349, a case sometimes (though, it is submitted, inconsiderately) cited for the purpose of shewing that a servant wrongfully dismissed cannot, after the expiration of the term for which he was hired, sue in indebitatus assumpsit for a compensation for any longer period than he has actually served. In that case the plaintiffs declared on a special count stating a hiring for a year, adding a count for wages. It turned out that the hiring was for a year, determinable by a month's notice. Lord Ten

terden held that they could not recover on the first count, on the ground of variance, nor on the second for more than the period of actual service; and as a sufficient sum had been paid to cover that, he directed a nonsuit. It would appear that in this case the action was commenced before the expiration of the term, and if so, Lord Tenterden's ruling is perfectly reconcilable with the case of Gandell v. Pontigny; and this it probably was which, on its being contended in Ridgway v. Hungerford Market Co., 3 Ad. & Ell. 179, that the plaintiff, a dismissed clerk, who had waited till the expiration of the term before bringing his action, could not maintain indebitatus assumpsit for his whole wages, elicited from Mr. Justice Coleridge the remark, that "if it were necessary, he should have wished for time to consider how far this question is determined by the doctrine laid down by Lord Tenterden, in Archard v. Horner." That the decision of Lord Tenterden, in Archard v. Horner, proceeded on the grounds above stated, has been since asserted by the court in Smith v. Hayward, B. R. Mich. 1837 MSS. In that case, which was extremely similar to Archard v. Horner, the plaintiff declared on a spe. cial contract for a year, with the indebitatus count, and failed upon the special count, by reason of a variance; the contract turning out to be determinable by three months' notice. On the indebitatus count he was defeated, as in Archard v. Horner, in consequence of having brought his action too soon. It must be admitted, that the judges in that case cast some reflections upon Gandell v. Pontigny, without, however, overruling it. It would not be right to quit this subject without noticing the case of Eardly v. Price, 2 N. R. 333, in which a different construction from any that has been yet suggested, was put upon a contract very similar to that in Archard v. Horner. The declaration contained a count for school

ing, lodging, board, meat, drink, &c. The last count stated, that in consideration that the plaintiff had, at the request of the defendant, received J. W. as his scholar, and that J. W. had left the plaintiff's school without due notice, the defendant promised to pay the plaintiff as much money as he therefore reasonably deserved to have. It appeared that the defendant had sent J. W. to this plaintiff's school, and taken him away without notice, the terms of the school being that

a quarter's notice is required to be given before the removal of any young gentleman, or to pay for a quarter." The plaintiff having recovered for a quarter, it was contended, on a motion for a new trial, that the special count was not proved, and that the plaintiff could not recover on the indebitatus count, because that the consideration was not actually executed. The court, however, held it was so. "The terms of the school," said the L. C. J.," are, that 301. a year shall be paid; but that if the scholar be taken away without notice, an additional quarter shall be paid. Still, however, the thing to be paid for is, that which has been supplied. The price for half a year is 157.; but, if at the end of half a year the scholar is taken away without a quarter's notice, the price for the first half year is to be 151. and 71. 10s.”

Assuming the position to be correct, that a servant or agent wrongfully dismissed, may wait till the expiration of the term, and then maintain indebitatus assumpsit for his whole wages, questions may arise as to his conduct in the intermediate time, and how far it may afford the master a defence; as, for instance, if he have before the expiration of his term hired himself to another master, and how far the first master may be entitled to his intermediate earnings, by virtue of the doctrine asserted in Thompson v. Havelock, 1 Campb. 529; Diplock v. Blackburne, 3 Camp. 43. See. Patmore v. Colburn, 4 Tyrwh. 840.