2 Story on Bailra. § 431; Jones on Bailm. 22, 53, 62, 97, 98, 120, 121; Coggs v. Bernard, 2 Ld. Raym. 909; Moneypenny v. Hartland, 1 C. & P. 352; 2 C. & P. 378; Pothier, Contrat de Louage, n. 425; 1 Bell, Coram. 456, 5th ed.; Duncan v . Blundell, 3 Stark. 6; 2 Kent, Coram. 588; Dig. Lib. 50, tit. 17, 1. 132; Lib. 4, tit. 9, 1. 5; Lib. 19, tit. 2, 1. 9, § 5; Pothier, Pand. Lib. 19, tit. 2, n. 29; Boorman v. Brown, 3 Q. B. 511.
3 But if the employer know he has not the requisite skill, quaere. Felt v. School District, 24 Vt. 297.
4 Story on Bailm. § 436; Jones on Bailm. 101; 3 Black. Coram. 157; Elsee v. Gatward, 5 T. R. 143; Thome v. Deas, 4 Johns. 84; M'Intyre v. Carver, 2 Watts & Serg. 392; Morgan v. Congdon, 4 Comst. 551. See also Gregory v. Stryker, 2 Denio, 628; Farrington v. Meek, 30 Mo. 578; Lovett v. Brown, 40 N. H. 511; Nevan v. Roup, 8 Iowa, 211; Wilson v. Martin, 40 N. H. 88.
1 Forth v. Simpson, 13 Q. B. 680.
2 Story on BSilm. §438; 1 Bell, Coram. 458; Pothier, Contrat de Louage, n. 434. See Menetone v. Athawes, 3 Burr. 1592; Gillett v. Maw-man, 1 Taunt. 137; Story on Sales, § 235; Gregory v. Stryker, 2 Denio, 628.
3 Menetone v. Athawes, 3 Burr. 1592. See also Appleby v. Meyers, Law R. 1 C. P. 615 (1866); Niblo v. Binsse, 1 Keyes, 476 (1864).
4 Tompkins v. Dudley, 25 N. Y. 272; Dermott v. Jones, 2 Wall. 1; School Trustees of Trenton v. Bennett, 3 Dutch. 514; School District v. Dauchy, 25 Conn. 530, containing an elaborate review of the cases on this point.
5 Gillett v. Mawman, 1 Taunt. 140; Adlard v. Booth, 7 C. & P. 108.
6 King v. Humphreys, 10 Barr, 217. See Mallory v. Willis, 4 Comst. 76; Baker v. Woodruff, 2 Barb. 520; 2 Comst. 153;.Wadsworth v. Allcott, 2 Seld. 64; Foster v. Pettibone, 3 Seld. 433; Buffum v. Merry, 3 Mason, 478.
§ 893. It is often difficult to determine, in cases where the work is badly done, or is left unfinished, which party shall suffer the loss. And in the first place, where, although finished, it is badly done, the rule is, that if there be an express agreement to make a thing in a particular manner, and the workman do not fulfil his engagement, the employer is not bound to take the thing.4 Thus, where a contract was made to build a house for a certain sum, and to put therein certain joists and other materials of a given description and measurement, and the builder omitted to put them in, it was held that, not having performed his agreement according to its material terms, he actually done that he would be responsible, if it were contrary to the contract.1
1 South Australian Ins. Co. v. Randell. Law R. 3 P. C. 101 (1869), contrary to Seymour v. Brown, 19 Johns. 44.
2 Supra, note 2. And see Appleby v. Meyers, Law R. 1 C. P. 615.
3 Clarke v. Spence, 4 Ad. & El. 470; Woods v. Russell, 5 B. & Al. 942. See Tripp v. Armitage, 4 M. & W. 687; Carruthers v. Payne, 5 Bing. 277; Laidler v. Burlinson, 2 M. & W. 614; Oldfield v. Lowe, 9 B. & C. 73; Story on Sales, § 234, 235; Denew v. Daverell, 3 Camp. 451. But see Williams v. Jackman, 16 Gray, 514; Andrews v. Durant, 1 Kern. 35.
4 Ellis v. Hamlen, 3 Taunt. 52; Jennings v. Camp, 13 Johns. 94; M'Millan v. Vanderlip, 12 Johns. 165; Cutter v. Powell, 6 T. R. 320; Thornton v. Place, 1 Mood. & Rob. 218; Cooke v. Munstone, 1 Bos. & Pul. N. R. 355; 1 Bell, Comm. 456, 5th ed.; Cousins v. Paddon, 2 C. M. & R. 547; Burn v. Miller, 4 Taunt. 745; Taft v. Montague, 14 Mass. 282; Jewell could not recover any thing.1 So, also, where a bridge was built so as to be useless, the same rule was held to apply.2 And in general the breach is a bar when it goes to the whole consideration; otherwise when it is only a partial failure.3
§ 894. Yet, if the subject-matter of the work be altogether created by the workman, as if it be to make a new thing, and not merely to repair an old one, so that the employer might refuse it, and he, nevertheless, accept it, and receive the benefit for it, it seems that he would be liable on a quantum meruit, although it were not performed according to the contract. Nor is it necessary in such case that such acceptance should be express, for it will be implied from the circumstances of the case, and it is incumbent on the employer expressly to refuse to accept the work. And especially would his assent to any variation from the contract be implied, when he was actually cognizant thereof and made no objection. But it would be only on the ground of an implied acceptance of the work v. Sehroeppel, 4 Cow. 561; Sickels p. Pattison, 14 Wend. 257; Sinclair v. Bowles, 9 B. & C. 92; Feeter p. Heath, 11 Wend. 477.
1 Ellis p. Hamlen, 3 Taunt. 52. In this case Mansfield, C. J., observed: "The defendant agrees to have a building of such and such dimensions; is he to have his ground covered with buildings of no use, which he would be glad to see removed, and is he to be forced to pay for them besides ? It is said he has the benefit of the houses, and, therefore, the plaintiff is entitled to recover on a quantum valebant. To be sure it is hard that he should build houses and not be paid for them; but the difficulty is to know where to draw the line; for if the defendant is obliged to pay in a case where there is one deviation from his contract, he may equally be obliged to pay for any thing, how far soever distant from what the contract stipulated for." See also Sinclair p. Bowles, 9 B. & C. 92; Pullman v. Corning, 5 Seld. 93; Wooten p. Read, 2 S. & M. 585. But see Britton v. Turner, 6 N. H. 481.
2Taft p. Montague, 14 Mass. 282.
3 Oxford p. Provand, 5 Moore, P. C. (n. s.) 150, 179 (1868). See, also, Tildesley p. Clarkson, 30 Beav. 419. There A. agreed to take from 1$. a lease of an unfinished house, containing covenants on the part of A. to repair and keep in repair. B. agreed to finish the house. The Master of the Rolls declined compelling A. to take the lease; the house having been finished in such a defective manner as to. make it unreasonable. In Oxford v Provand, it is said that the maxim of equity, that he who seeks equity must do equity, when applied to the case of a partial nonperformance of agreement, includes the rule at law which, in actions for damages upon contracts, discriminates between a whole or only a partial failure of performance; the breach being a bar when it goes to the whole, but no bar to a partial failure: in which case the party injured is entitled to compensation by a cross action.