(k) In this case the whole subject was fully and ably examined by Parker, J., and the court came to the following conclusions, which the American editor of Chitty on Contracts regards as "manifestly just and sensible." 1. Where a party undertakes to pay, upon a special contract for the performance of labor, he is not liable to be charged upon such special contract until the money is earned according to the terms of the agreement; and where the parties have made an express agreement the law will not imply and raise an agreement different from that which the parties have entered into, except upon some further transaction between them. 2. In case of a failure to perform such special contract, by default of the party contracting to do the service, if the money is not due by the terms of the special agreement, and the nature of the contract is such that the employer can reject what has been done, and refuse to receive any benefit from the part performance, he is entitled to do so, unless he has whole doctrine of these cases, and permits the servant to recover on a quantum meruit. His right to recover is carefully guarded in this case by principles which seem to protect the master from all wrong; and to require of him only such payment as is justly due for benefits received and retained, and after all deduction for any damage he may have sustained from the breach of the contract. So guarded, it might seem that the principles of this case are better adapted to do adequate justice to both parties, and wrong to neither, than those of the numerous cases which rest upon the somewhat technical rule of the entirety of the contract. It is certain, however, that, since this case was reported, the same question has been again considered *in other courts, and decided in conformity with the earlier decisions. (l)l before assented to and accepted of what has been done, and. in such case the party performing the labor is not entitled to recover, however much he may have done. 3. But if, upon a contract of such a character, a party actually receives useful labor, and thereby derives a benefit and advantage, over and above the damage which has resulted from the breach of the contract by the other party, the labor actually done and the value received furnish a new consideration, and the law thereupon raises a promise to pay to the extent of the reasonable worth of the excess. And the rule is the same, whether the labor was received and accepted by the assent of the party prior to the breach, and under a contract by which, from its nature, the party was to receive the labor from time to time until the completion of the whole contract, or whether it was received and accepted by an assent subsequent to the performance of all that was in fact done. 4. In case such contract is broken, by the fault of the party employed, after part performance has been received, the employer is entitled, if he so elect, to put the breach of contract in defence for the purpose of reducing the damages, or showing that nothing is due, and the benefit for which he is liable to be charged, in that case, is the amount of value which he has received, if any, beyond the amount of damage, and the implied promise which the law will raise, is to pay such amount of the stipulated price for the whole labor as remains, after deducting what it would cost to procure a completion of the whole service, and also any damage which has been sustained by reason of the non-fulfilment of the contract. 5. If in such case it be found that the damages are equal to or greater than the amount of the value of the labor performed, so that the employer, having a right to the performance of the whole contract, has not, upon the whole case, received a beneficial service, the plaintiff cannot recover. 6. If the employer elects to permit himself to be charged for the value of the labor, without interposing the damages in defence, he is entitled to do so, and may have an action to recover his damages for the non-performance of the contract. 7. If he elects to have the damages considered in the action against him, he must be understood as conceding that they are not to be extended beyond the amount of what he has received, and he cannot therefore afterwards sustain an action for further damages.

(/) The case of Britton v. Turner was cited and alluded to by the court, in giving the opinion, in the subsequent case of Olmstead v. Beale, 19 Pick. 529, but Morton, J., who there delivered the opinion of the court, said: "We have no hesitancy in adhering to our own decisions, supported as they are by principle, and a long series of adjudications." On the other hand the principles of Britton v. Turner were clearly approved by Bennett, J., in delivering the opinion of Fenton v. Clark, 11 Vt. 560. The court of Vermont seems in other cases inclined to construe all entire contracts of labor and service equitably for the laborer, and to hold, where the employer has received benefit

1Byerlee v. Mendel, 39 la. 382, follows Britton v. Turner, supra.

On the same principle of entirety of contract, it is held, that if a servant is discharged for misconduct during the currency of a quarter, he is entitled to no wages from the beginning of that quarter, although he did not misbehave until the day when discharged. (m) But if the contract be dissolved by mutual consent, he may recover wages pro rata, without any express contract to that effect, (n) and so he may if he leave for justifiable cause. (o) If a justifiable cause for dismissal exists, he cannot recover, although not dismissed expressly on that ground, (p) and even although the master did not know of its existence at the time. (q) And if the servant by his misconduct, forfeits his claim for wages, a subsequent promise of the * master to pay the wages has been held void for want of consideration; (r) but this cannot be a general rule.

Where the servant is wrongfully dismissed during a quarter, or other definite term, he may, after the quarter or term ends, from the servant's labor, and the parties cannot be placed in statu quo, that the employer is liable on a quantum meruit for the labor actually performed, although the contract was not performed exactly as agreed. See Gilman v. Hall, 11 Vt. 510; and Blood v. Enos, 12 Vt. 6S5; Sherman v. Champlain Trans. Co. 31 Vt. 162. See notes (g), p. *36, and (j), p. *38. It may be seen in 7th Sir Wm. Jones' works, 366, that the laws of Menu contain the very same principle as that of the common law, as asserted in Olmstead v. Beale; so that it has, at all events, the sanction of an extreme antiquity.