Sec 713

It is within the power of the parties to make payment of an employee contingent on completion of work; and if so there can be no claim for payment until the work is complete, although he may claim for damages sustained by a wrongful dismission.5 It must appear, however, from the contract, or from the course of business, that it was intended that, unless the work be completed, there shall be no compensation.6 This is usually the case with regard to contracts with real estate agents to buy, sell, or lease, in which case no commissions are due unless the mandate is completed;7 and so with regard to other contracts of brokerage.8 But if, after a broker has obtained a customer on the employer's terms, the transaction is wantonly broken off by the employer, the broker is entitled to remuneration pro tanto.1 - When there is an agreement, express or implied, for a lumping payment or commission at the end of the service, a party rescinding, supposing him to be entitled to compensation, is restricted to a suit on the quantum meruit But he cannot rescind, and yet claim for damages under the contract.2

Otherwise when there is to be no payment except for aggregate.

1 Infra, sec 716, and see supra, sec 606-7.

2 Supra, sec 602.

3 Supra, sec 520, 601 et seq.; Leake, 2d ed. 68; Champion V. Short, 1 Camp. 53; Shipton V. Casson, 5 B. & C. 378; Oxendale V. Wetherill, 9 B. & C. 386; Star Glass Co. V. Morey, 108 Mass. 570; see Symonds V. Carr, 1 Camp. 361; Roberts V. Beatty, 2 Pen. & W. 63. As dissenting from Oxendale V. Wetherill, see Champlin V. Rowley, 18 Wend. 187; Paige V. Ott, 5 Denio,.

406; Witherow V. Witherow, 16 Ohio, 238.

4 Hart V. Miles, 15 M. & W. 85; see Downer V. Thompson, 6 Hill, N. Y. 208; Clark V. Gaylord, 24 Conn. 484: Rntgers V. Lucet, 2 Johns. Cas. 92; Harlan V. Harlan, 20 Penn. St. 303. As to distinctive New York rule, see infra, sec 899.

5 Infra, sec 900, and cases there cited.

6 Cutter V. Powell, 6 T. R. 320.

7 Bull V. Price, 7 Bing. 237.

8 Read V. Rann, 10 B. & C. 438; see Hamond V. Holiday, 1 C. & P. 384.

Sec 714

When the agreement is to do a particular work by the job (locatio operis) for a lumping price, and the completion of the work is prevented by casus, then usually indebitatus assumpsit cannot be maintained for the amount of work actually performed.3 When a tailor, for instance, dies before completing a coat he undertook to make, his representatives cannot sue for the time he spent on it;4 when a party orders a set of artificial teeth, but dies before completion, the dentist has no claim against his executors for the partial work done;5 and when certain machinery, which is to be paid for as a whole, is destroyed by fire before completion, there can be no recovery for the part of the work done before the fire.6 "The plaintiffs, having contracted to do an entire work for a specific sum, can recover nothing unless the work be done, or it can be shown that it was the defendant's fault that the work was incomplete, or that there is something to justify the conclusion that the parties have entered into a fresh contract."7 It is otherwise, however, when from the contract it appears that the work was to be paid pro tanto as it proceeded.8 And where stipulation shows the contrary.". "Where a beneficial service has been performed and received, under contracts of this kind, the mutual agreements cannot be considered as going to the whole of the consideration, so as to make them mutual conditions, the one precedent to the other, without a specific proviso to that effect."1

When completion of work is prevented by accident, quantum meruit may lie.

1 Leake, 2d ed. 67; Prickett V. Badger, 1 C. B. N. S. 296.

2 Supra, sec 603.

3 Supra, sec 308, 322 et seq.; Adlard V. Booth, 7 C. & P. 108; see Gillett V. Mawman, 1 Taunt. 140; Wadsworth V. Alcott, 2 Seld. 64; Martin V. Schoen-berger, 8 W. & S. 367; King V. Humphreys, 10 Barr, 217; Steeples V. Newton, 7 Oregon, 110.

4 Weruer V. Humphreys, 2 M. & G. 853; see Lee V. Griffin, 1 B. & S. 272; Leake, 2d ed. 68, 70.

5 Lee V. Griffin, 1 B. & S. 272; see Clay V. Yates, 1 H. & N. 730; Campanari V. Woodburn, 15 C. B. 400; see discussion of this case in Benj. on Sales, 3d Am. ed. sec 102; and see Pres-cott V. Locke, 51 N. H. 96.

6 Appleby V. Myers, L. R. 2 C. P. 651; supra, sec 322; see Morrison V. Cummings, 26 Vt. 486; McClurg V. Price, 59 Penn. St. 420.

7 Appleby V. Myers, ut supra.

8 Leake, 2d ed. 70; supra, sec 286 et seq.; Menetone V. Athewes, 3 Burr. 1592; Cook V. McCabe, 53 Wis. 250; cited supra, sec 326; see McMellan V. Melloy, 10 Neb. 228, where it was held that on a contract to thresh an entire the premises on which the work was to be done were burned after an instalment was performed and before it was paid for, the work being divisible in instalments, it was held that the employee could recover for the instalment finished.1 Hence, whenever the object on which labor is to be spent is destroyed by casus before the labor is complete, then if the contract is divisible there can be a recovery for the work actually done;2 and an employee who is prevented by casus from serving out his full term of employment, may nevertheless recover for the services actually rendered on a quantum meruit.3 When, also, a contract for work and labor at wages has been terminated by any means other than the voluntary refusal of the employee to perform the work on his part, and the employer has received benefit from the labor performed or material furnished by the employee, "the value of such labor and materials may be recovered on a count upon a quantum meruit, in which case the actual benefit which the defendant receives from the plaintiff is to be paid for, independently of the terms of the contract."4 "We have abundant reason to believe that the general understanding of the community is, that the hired laborer shall be entitled to compensation for the service actually performed, though he do not continue the entire term contracted for, and such contract must be presumed to be made with reference to that understanding, unless an express crop of wheat at a given price per acre, the employee, failing fully to perform, may recover at the contract price for what he has done, less the damages sustained by the employer by the breach of the contract.

1 Schwartz V. Saunders, 46 Ill. 18; see supra, sec 322.

2 Supra, sec 326.

3 2 Ch. on Cont. 11th Am. ed. 849; citing Dickey V. Linscott, 20 Me. 453; Lakeman V. Pollard, 43 Me. 463; Fen-ton V. Clark, 11 Vt. 557; Fuller V. Brown, 11 Met. 440; Ryan V. Dayton, 25 Conn. 188; Fahy V. North, 19 Barb. 341. In Dewey V. School Dist., 43 Mich. 480, it was held that a teacher employed in a public school might recover for his salary for a period during which the school was suspended on account of smallpox having attacked some of the scholars. See, on this topic, a learned note in 38 Am. Rep. 206, as reproduced in part in 25 Alb. L. J. 384; and see distinction as to casus taken, supra, sec 308, 311, 322. The rule where completion of the job is prevented by the employer's interference is discussed infra, sec 716.

4 Lord, J., Fitzgerald V. Allen, 128 Mass. 234; citing Hayward V. Leonard,.

7 Pick. 181; Smith V. Meeting House,.

8 Pick. 178; Moulton V. Trask, 9 Met. 577; Snow V. Ware, 13 Met. 42; Atkins V. Barnstable, 97 Mass. 428.