The fourth and final ground of decision is that contracts of service, such as the one before the court, are usually intended by the parties to entitle the laborer to compensation for services rendered though he quits before the expiration of the contract period, and that in the absence of express stipulation to the contrary they should be so interpreted:2
"In fact we think the technical reasoning, that the performance of the whole labor is a condition precedent, and the right to recover anything dependent upon it - that the contract being entire there can be no apportionment - and that there being an express contract no other can be implied, even upon the subsequent performance of service - is not properly applicable to this species of contract, where a beneficial service has been actually performed; for 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 contracts must be presumed to be made with reference to that understanding, unless an express stipulation shows the contrary."
1 At page 489.
2 At page 493.
The answer to this argument is obvious. If the court really believed in its extraordinary theory as to the severability of the contract, it should have allowed a recovery on the contract, and there would then have been no occasion to appeal to quasi contractual principles. In another part of the opinion, however, the court says :1 "It is clear, then, that he is not entitled to recover upon the contract itself, because the service, which was to entitle him to the sum agreed upon, has never been performed."
In conclusion, then, all of the reasons upon which the decision is based appear to be either inadequate or unsound. Even the court by which it was handed down admitted, in a later case, that it had a "direct tendency to the willful and careless violation of express contracts fairly entered into."2 Considerations both of justice and of policy forbid its approval.
The right of one who has violated his contract having been considered upon principle, it becomes necessary to examine the authorities. For the sake of convenience, the cases arising from various types of contract - (1) service contracts, (2) building or working contracts, (3) contracts for the sale of goods, and (4) contracts for the payment of money - will be separately considered.