99; Catesby's Case, 6 Coke, 62; Lacon v. Hooper, 6 T. R.224; 3 Burge, Comm. on Col. and For. Law, pt. 2, ch. 20, p. 776, 777.
1 Lester v. Garland, 15 Ves. 248; Pellew v. Inhabitants of Wonford, 9 B. & C. 144; Hardy v. Byle, 9 Ib. 603; Woodbridge v. Brigham, 12 Mass. 403; 13 Ib. 556; Henry v. Jones, 8 Ib. 453; Pugh v. The Duke of Leeds, 2 Cowp. 714; Bigelow v. Willson, 1 Pick. 485; Webb v. Fairmaner, 3 M. & W. 473; Young v. Higgon, 6 M. & W. 49; Buxton v. Spires, 2 Cromp., M. & R. 601; Blake v. Crowninshield, 9 N. H. 304; Harris v. Blen, 16 Me. 175; Quarks v. George, 23 Pick. 400; Startup v. Macdonald, 6 Man. & Gr. 593.
2 4 Kent's Comm. p. 95, note (a), 5th ed.; Russell v. Ledsam, 14 M. & W. 574; Pugh v. Duke of Leeds, 2 Cowp. 714; Bigelow v. Willson, 1 Pick. 485. Whether the word "from " is or not exclusive depends on the circumstances of the case. See Wilkinson v. Gaston, 9 Q. B. 137.
3 Styles v. Wardle, 4 B. & C. 908; Wilkinson v. Gaston, 9 Q. B. 137.
4 Hall v. Cazenove, 4 East, 477.
5 Salter v. Burt, 20 Wend. 205; Story on Bills of Exchange, § 338; Ransom v. Mack, 2 Hill, 587; Homes p. Smith, 20 Me. 264; Stebbins v. Leowolf, 3 Cush. 137. But see Kilgour v. Miles, 6 Gill & Johns. 268.
6 Startup v. Macdonald, 6 Man. & G. 593.
1 Kidwelly v. Brand, Plowd. 71. 2 Shepp. Touch. 136.
§ 1330. Whether a part performance will be sufficient to found an action for a proportional part of the consideration, depends upon whether the contract is an entirety or not. If it be entire, it must be wholly performed. If it be severable, a Quantum meruit may be recovered for a partial performance.3 If the performance of the whole by the one party be a condition precedent to the liability of the other party, and constitute an essential feature of the contract, a part performance will not be sufficient to found an action.4 Thus where a ship was let to freight at a certain sum per month, to be paid on her final discharge at the end of the voyage, and she was lost in the middle of the voyage, it was held that no action could be maintained for any freight.1 So where freight was to be paid on the ship's arrival, and she never arrived, the same rule was held to apply,2 her arrival being a condition precedent to the recovery of any portion thereof. But if the circumstances of the case indicate a divisibility and apportionment of the contract, and the performance of the whole be not the main consideration, an action may be maintained for a part performance.3 If, however, although the contract be entire, an entire performance by one party be prevented by the interference of the other party, or be dispensed with, expressly or impliedly, a part performance is a good ground for a quantum meruit.4 And the general rule in the case of part performance is that money paid upon the contract cannot be recovered.5
1 See Bacon's Abr. tit. Tender, D.; Co. Litt. 202, a.
2 Ibid. See ante, § 711.
3 Ante; Tompson v. Noel, 1 Lev. 16; 1 Keb. 100; Needier v. Guest, Aleyn, 9; Glazebrook v. Woodrow, 8 T. R. 366; Duke of St. Albans v. Shore. 1 H. Black. 271.
4 Gillett v. Mawman, 1 Taunt. 137; Adlard v. Booth, 7 C. & P. 108; Sinclair v. Bowles, 9 B. & C. 94; Bates v. Hudson, 6 Dowl. & By. 3; Countess of Plymouth v. Throgmorton, 3 Mod. 153; 1 Salk. 65; Neal v. Viney, 1 Camp. 471; Lovatt v. Hamilton, 5 M. & W. 639; Smith v.
§ 1331. If a party undertake to do certain work, or to perform certain services, his contract must be performed with proper skill and knowledge so that some benefit may arise therefrom, or the other party will not be liable.6 Thus, if a person undertake to rebuild the front of a house, and build it out of the perpendicular, and in such a manner that from the danger of
Myers, Law R. 5 Q. B. 433; Mechelen v. Wallace, 7 Ad. & El. 54; Martin v. Schoenberger, 8 Watts & Serg. 367; Bowker v. Hoyt, 18 Pick. 555; Oxendale v. Wetherell, 9 B. & C. 386; Booth v. Tyson, 15 Vt. 515.
1 Byrne v. Pattinson, Abbott on Ship. 317; Smith v. Wilson, 8 East, 437; Mitchell v. Darthez, 2 Scott, 771.
2 Gibbon v. Mendez, 2 B. & Ald. 17.
3 Roberts v. Havelock, 3 B. & Ad. 404; Menetone v. Athawes, 3 Burr. 1592; Ritchie v. Atkinson, 10 East, 295.
4 Brown v. Kimball, 12 Vt. 617; Blood v. Enos, 12 Vt. 625; Wilhelm v. Caul, 2 Watts & Serg. 26; Champlin v. Rowley, 18 Wend. 187. If a laborer be turned away so he cannot fulfil his contract, he may recover the full price under the common counts. Updike v. Ten Broeck, 3 Vroom, 105 (1866).
5 Whincup v. Hughes, L. R. 6 C. P. 78, 81, Bovill, C. J., criticising Hirst v. Tolson, 2 Macn. & G. 134.
6 Basten v. Butter, 7 East, 484; Moneypenny v. Hartland, 1 C. & P. 352; s. c. 2 Ib. 378; Denew v. Daverell, 3 Camp. 452; Bracey v. Carter, 12 Ad. & El. 373; Hayselden v. Staff, 5 Ad. & El. 161. See ante, § 891. ' its falling, it is required to be taken down, he cannot recover any thing therefor.1 So, also, if he undertake to bring about a certain result, and wholly fail in so doing, so that no benefit accrues to his employer, he cannot recover for his labor. Thus, where a workman undertook to erect a stove in a shop, and to lay a tube under the floor which would carry off the smoke, and the plan utterly failed, so that the stove could not be used, it was held that he was entitled to no remuneration for his labor.2 But if the mode in which the work is to be done be prescribed, or if a person be ordered to make a specific article, the workman is not to be understood to warrant that the mode is a proper one, or that the article is fit for the purpose for which it is intended, and although no benefit be received from his work, he may, nevertheless, recover its value.3
§ 1332. Another question to be considered is when notice and request to perform are necessary. The rule is that where the right to claim the performance of a contract depends upon the occurrence of a specific fact, the promisee is not bound to give notice thereof to the promisor, unless the contract be to be performed on condition that notice is given,4 or unless the fact be peculiarly within his knowledge,5 or unless it be reasonably proper under the circumstances of the case.6 So, also, a request to perform need not ordinarily be averred. But if, by the express terms of the contract, notice be a condition precedent to performance, or be implied from the nature of the contract, or if the act on which the right to demand performance is to arise be perfectly indefinite, it must be averred.1 Thus, if the consideration be executed, a previous request would be necessary to make it good, and, therefore, the request must be averred in the pleadings, whether it were actually made, or arose from implication from the circumstances. So, too, where a party stipulates to account before such auditors as the obligee shall assign, the obligee is bound to give him notice when he has assigned them.2