By a very pronounced weight of authority, an employee who has willfully abandoned his employment is without a remedy against his employer.1 There are several States, however, which follow the case of Britton v. Turner,2 heretofore considered (ante, Sec. 167 et seq.), and allow the employee to recover the value of his part performance, less the damages resulting from his breach.3

1 At page 486.

2 Woods, C.J., in Davis v. Barrington, 1855, 30 N. H. 517, 529.

As to the rights of an employee discharged for good cause there is a closer division of authority.4 In principle it would seem that if the cause of discharge involves a breach of faith by the employee he should be regarded as no better than one who willfully abandons his engagement; but if the discharge is due to the employee's want of skill or strength or judgment he should be permitted to recover. This distinction has received little recognition in the decisions, however, and there are not a few cases in which an employee discharged for deliberate misconduct has been afforded relief.

1 Henderson v. Stiles, 1853, 14 Ga. 135; Hansell v. Erickson, 1862, 28 111. 257; Hofstetter v. Gash, 1902, 104 111. App. 455; Callahan v. Stafford, 1866, 18 La. Ann. 556; Miller v. Goddard, 1852, 34 Me. 102 ; 56 Am. Dec. 638; Olmstead v. Beale, 1837, 19 Pick. (Mass.) 528; Davis v. Maxwell, 1847, 12 Metc. (Mass.) 286; Nelichka v. Esterly, 1882, 29 Minn. 146; 12 N. W. 457; Timberlake v. Thayer, 1894, 71 Miss. 279; 14 So. 446; 24 L. R. A. 231; Earp v. Tyler, 1881, 73 Mo. 617; Mather v. Brokaw, 1881, 43 N. J. L. 587; Natalizzio v. Valentino, 1904, 71 N. J. L. 500; 59 Atl. 8; McMillan v. Vanderlip, 1815, 12 Johns. (N. Y.) 165; 7 Am. Dee. 299; Lantry v. Parks, 1827, 8 Cow. (N. Y.) 63; Seaburn v. Zachman, 1904, 99 App. Div. 218; 90 N. Y. Supp. 1005; Larkin v. Buck, 1860, 11 Ohio St. 561; Steeples v. Newton, 1879, 7 Or. 110; 33 Am. Rep. 705; Hughes v. Cannon, 1853, 1 Sneed (33 Tenn.) 622; Winn v. Southgate, 1845, 17 Vt. 355; Diefen-back v. Stark, 1883, 56 Wis. 462; 14 N. W. 621; 43 Am. Rep. 719.

2 1834, 6 N. H. 481; 26 Am. Dec. 713.

3 Pixler v. Nichols, 1859, 8 la. 106; 74 Am. Dec. 298; Byerlee v. Mendel, 1874, 39 la. 382; Porter v. Whitlock, 1909, 142 la. 66; 120 N. W. 649; Duncan v. Baker, 1878, 21 Kan. 99; Murphy v. Sampson, 1902, 2 Neb. (Unof.) 297; 96 N. W. 494; Bedow v. Tonkin, 1894, 5 S. D. 432; 59 N. W. 222 ; Carroll v. Welch, 1861, 26 Tex. 147. And see Chamblee v. Baker, 1886, 95 N. C. 98.

4 Recovery not allowed: Turner v. Robinson, 1833, 5 Barn. & Ad. 789; Ridgway v. Hungerford Market Co., 1835, 3 Ad. & El. 171; Hartman v. Rogers, 1886, 69 Cal. 643; 11 Pac. 581; (see Cal. Civil Code, Sec. 2002); Posey v. Garth, 1841, 7 Mo. 94; 37 Am. Dec. 183; Lindner v. Cape Brewery, etc., Co., 1908, 131 Mo. App. 680; 111 S. W. 600; (cf. Anstee v. Ober, 1887, 26 Mo. App. 665); Lane v. Phillips, 1859, 6 Jones' L. (51 N. C.) 455, (cf. Pullen v. Green, 1876, 75 N. C. 215, 218).

Recovery allowed: Newman v. Reagan, 1879, 63 Ga. 755; Abend-post Co. v. Hertel, 1896, 67 I11. App. 501; Fuqua v. Massie, 1894, 95 Ky. 387; 25 S. W. 875; Lawrence v. Gullifer, 1854, 38 Me. 532; Robinson v. Sanders, 1852, 2 Cushm. (24 Miss.) 391; Byrd v. Boyd, 1827, 4 McCord (S. C.) 246; 17 Am. Dec. 740; Massey v. Taylor, Wood & Co., 1868, 5 Coldw. (45 Tenn.) 447; 98 Am. Dec. 429 ; Hilde-brand v.Amer. Fine Art Co., 1901, 109 Wis. 171; 85 N. W. 268; 53 L. R. A. 826.

If an employee neither willfully abandons his employment, nor is discharged by his employer, but nevertheless fails to satisfy the requirements of his contract, the same test of good faith should be applied. Thus, if he is discovered to have deliberately disobeyed the instructions of his employer or to have deliberately deceived or defrauded him, he should be denied com-pensation for his labor. There are cases in which it is so held,1 although in jurisdictions which allow a recovery by one who has been discharged for deliberate misconduct, relief would probably be afforded. If, on the other hand, the employee's failure is the result of some mistake of judgment, or of want of skill, or of some untoward circumstance, there is no reason why he should be denied relief.

In Vermont it is well established that one who violates a condition of his contract is not entitled to recover for part performance.2 But the rule appears to have been regarded as one of severe hardship, and it has, been limited in its application to "contracts for service for a definite time, and those which are incapable of reasonable apportionment, unless they provide for a forfeiture of all benefit when not fully performed." 3 Accordingly, it has been held that one who abandons a contract to make staves at a specified price per piece,4 or to clear land at a price per acre,1 or to haul lumber at a price per thousand,2 may recover for his part performance at the contract rate, after deducting the damages resulting from his breach.

1 Prescott v. White, 1885, 18 111. App. 322; World's Columbian Exposition v. Liesegang, 1894, 57 111. App. 594; Sipley v. Stickney, 1906, 190 Mass. 43; 76 N. E. 226; 5 L. R. A. (N. S.) 469; 112 Am. St. Rep. 309; Peterson v. Mayer, 1891, 46 Minn. 468; 49 N. W. 245; 13 L. R. A. 72.

2 St. Albans Steamboat Co. v. Wilkins, 1836, 8 Vt. 54; Ripley v. Chipman, 1841, 13 Vt. 268; Forsyth v. Hastings, 1855, 27 Vt. 646.

3 Jordan v. Fitz, 1884, 63 N. H. 227, 228. 4 Booth v. Tyson, 1843, 15 Vt. 515.