Storrs, J.
The various questions in this case, arise under the second and third counts of the declaration, the first having been abandoned, and the fourth not distinctly relied upon, by the plaintiffs, on the trial.
The questions of variance under the second count, were properly disposed of, by the court below. As to the price agreed to be paid by the defendant for the adjusters, no specific instructions were requested ; the testimony was verbal and confused; and it was properly left to the jury, to determine its weight, and whether, in that respect, it proved the contract as alleged.
The other claim of variance, which respected the consideration of the defendant’s promise, was, we think, unfounded. The adjusters, which were the subject of the contract, were comparatively small, portable instruments, of which all or most of the parts composing them had been already prepared, and very little, if any thing, remained to be done, but to unite them so as to form them into those instruments. The instruments could not properly be said to be made,-that is, formed into adjusters, so as to constitute them such,-until these parts should be so united ; and they might be indifferently said to be made or finished, when the parts were so formed or put together. However a contract merely to finish such a structure as a house or ship partly built, might be viewed, on an allegation of a contract to build them, considering the detached situation of the different parts of these articles when the contract was entered into, what remained to be done with them in order to form them into these instruments, and the character of the articles when finished, we do not perceive any such substantial difference between an agreement to make and one to finish them, that, on a question of variance, they should be distinguished. There has been, for some time past, a disposition on the part of courts, and one which we are not disposed to check, to abolish the refinements which once prevailed on the subject of variances ; and much less strictness of proof is now tolerated than formerly. We feel no inclination to retrograde, in this respect, as we should, if we allowed an objection bordering so much on subtilty as the one here made.
The defendant claims, that the verdict on this count, was, in several respects, manifestly against the evidence. He [48]*48insists, 1. that the evidence was insufficient to prove that any contract was made between the parties for the making of the twelve adjusters : 2. that, if any was proved, the evidence was insufficient to show that any particular price was agreed on for them: and 3. that if any such price was agreed on, it was not the one stated in that count. It is not necessary to consider these topics separately, nor to repeat the testimony respecting them. The testimony of Wheelock, if unimpaired, showed satisfactorily, that the defendant engaged the plaintiffs to finish these twelve instruments for him, and agreed to receive and pay for them. He states, twice, that in the negotiation between the parties respecting them, while the plaintiffs were making them, the defendant told one of the plaintiffs to go on and finish them, and he would take them, and send his stamps that they might be stamped. The stamps here refered to, were those used by the defendant to indicate that instruments of this description were patented by the defendant. He also stated, that the defendant afterwards sent his stamps for that purpose to the plaintiff's, and that the adjusters were stamped by them. The testimony of Wheelock was not impaired, unless by that of Cone, who confirms Wheelock in regard to the sending of the stamps, but states, that he understood from one of the plaintiffs, that there was no contract respecting the twelve adjusters. We do not think, that this latter part of his testimony is sufficient to outweigh the clear proof of a contract derived from the testimony of Wheelock, and the circumstances to which both he and Cone testified. As to the question whether any particular price was agreed on, and what it was, the testimony is more loose ; but it was properly submitted to the jury, and we do not feel warranted in saying, that they have palpably erred in finding the declaration proved, in this respect. The plaintiffs, therefore, were entitled to recover on the second count.
But the defendant claims, that the damages given on this count, which were the whole value of the articles contracted for, were excessive. The rule of damages, in an action for the non-acccptance of property sold or contracted for, is the amount of the actual injury sustained by the plaintiff, incon-sequence of such non-acceptance. This is, ordinarily, the difference between the price agreed to be paid for it and its [49]*49value, where such price exceeds the value. If it is worth that price, the damages are only nominal. But there may be cases where the property is utterly worthless in the hands of the plaintiff, and there the whole price agreed to be paid should be recovered. The present appears to us to be a case of this description. The articles contracted for were those for the exclusive right of making and vending which the defendant has obtained a patent. They could not be lawfully sold, by the plaintiffs; and were therefore worthless to them, in the form in which they were, when they were to be received by the defendant. And there is no evidence to show, that the materials of which they were made, could be converted to any other useful purpose. We do not think, that, under these circumstances, the defendant can justly require us to set aside the verdict, because the jury have given the full amount which he agreed to pay.
The plaintiffs claimed, on the trial, that in pursuance, either of the written contract of November 6, 1844, adduced by them in evidence, or a subsequent verbal contract made between them and the defendant, on the same day, they had made the parts of one hundred adjusters, (other than the fifty first mentioned in said written contract, and for which the defendant paid the plaintiffs, in cash and by note,) and were proceeding to complete them, when they were directed, by the defendant, to stop working on them, which they accordingly did ; but it was not claimed, that these parts were ever accepted by the defendant. For the value of their labour bestowed on these parts and the materials of which they were composed, the plaintiffs claimed to recover under the third count, which was a general count in indebitatus assumpsit for work and labour done, and materials found and provided about that work, by the plaintiffs for the defendant. The verdict shows, that a part of this claim was allowed by the jury. The defendant insists, that, so far as this claim was embraced in the verdict, it was against the evidence.
Assuming, that, in respect to the unfinished instruments, there was a fulfillment by the plaintiffs of the contract, so far as they had proceeded with them, when he was stopped by the defendant, the question presented by the facts, as thus claimed to be proved by the plaintiffs, is, whether, if one employs another to make a particular chattel out of the ma[50]*50terials of the latter, and during the progress of the work, and before it has assumed the character bargained for, it is stopped by the employer, by whom it has not been accepted, and to whose use it has not been in any manner appropriated, the party employed may maintain an action for work and labour generally against the employer.
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Storrs, J.
The various questions in this case, arise under the second and third counts of the declaration, the first having been abandoned, and the fourth not distinctly relied upon, by the plaintiffs, on the trial.
The questions of variance under the second count, were properly disposed of, by the court below. As to the price agreed to be paid by the defendant for the adjusters, no specific instructions were requested ; the testimony was verbal and confused; and it was properly left to the jury, to determine its weight, and whether, in that respect, it proved the contract as alleged.
The other claim of variance, which respected the consideration of the defendant’s promise, was, we think, unfounded. The adjusters, which were the subject of the contract, were comparatively small, portable instruments, of which all or most of the parts composing them had been already prepared, and very little, if any thing, remained to be done, but to unite them so as to form them into those instruments. The instruments could not properly be said to be made,-that is, formed into adjusters, so as to constitute them such,-until these parts should be so united ; and they might be indifferently said to be made or finished, when the parts were so formed or put together. However a contract merely to finish such a structure as a house or ship partly built, might be viewed, on an allegation of a contract to build them, considering the detached situation of the different parts of these articles when the contract was entered into, what remained to be done with them in order to form them into these instruments, and the character of the articles when finished, we do not perceive any such substantial difference between an agreement to make and one to finish them, that, on a question of variance, they should be distinguished. There has been, for some time past, a disposition on the part of courts, and one which we are not disposed to check, to abolish the refinements which once prevailed on the subject of variances ; and much less strictness of proof is now tolerated than formerly. We feel no inclination to retrograde, in this respect, as we should, if we allowed an objection bordering so much on subtilty as the one here made.
The defendant claims, that the verdict on this count, was, in several respects, manifestly against the evidence. He [48]*48insists, 1. that the evidence was insufficient to prove that any contract was made between the parties for the making of the twelve adjusters : 2. that, if any was proved, the evidence was insufficient to show that any particular price was agreed on for them: and 3. that if any such price was agreed on, it was not the one stated in that count. It is not necessary to consider these topics separately, nor to repeat the testimony respecting them. The testimony of Wheelock, if unimpaired, showed satisfactorily, that the defendant engaged the plaintiffs to finish these twelve instruments for him, and agreed to receive and pay for them. He states, twice, that in the negotiation between the parties respecting them, while the plaintiffs were making them, the defendant told one of the plaintiffs to go on and finish them, and he would take them, and send his stamps that they might be stamped. The stamps here refered to, were those used by the defendant to indicate that instruments of this description were patented by the defendant. He also stated, that the defendant afterwards sent his stamps for that purpose to the plaintiff's, and that the adjusters were stamped by them. The testimony of Wheelock was not impaired, unless by that of Cone, who confirms Wheelock in regard to the sending of the stamps, but states, that he understood from one of the plaintiffs, that there was no contract respecting the twelve adjusters. We do not think, that this latter part of his testimony is sufficient to outweigh the clear proof of a contract derived from the testimony of Wheelock, and the circumstances to which both he and Cone testified. As to the question whether any particular price was agreed on, and what it was, the testimony is more loose ; but it was properly submitted to the jury, and we do not feel warranted in saying, that they have palpably erred in finding the declaration proved, in this respect. The plaintiffs, therefore, were entitled to recover on the second count.
But the defendant claims, that the damages given on this count, which were the whole value of the articles contracted for, were excessive. The rule of damages, in an action for the non-acccptance of property sold or contracted for, is the amount of the actual injury sustained by the plaintiff, incon-sequence of such non-acceptance. This is, ordinarily, the difference between the price agreed to be paid for it and its [49]*49value, where such price exceeds the value. If it is worth that price, the damages are only nominal. But there may be cases where the property is utterly worthless in the hands of the plaintiff, and there the whole price agreed to be paid should be recovered. The present appears to us to be a case of this description. The articles contracted for were those for the exclusive right of making and vending which the defendant has obtained a patent. They could not be lawfully sold, by the plaintiffs; and were therefore worthless to them, in the form in which they were, when they were to be received by the defendant. And there is no evidence to show, that the materials of which they were made, could be converted to any other useful purpose. We do not think, that, under these circumstances, the defendant can justly require us to set aside the verdict, because the jury have given the full amount which he agreed to pay.
The plaintiffs claimed, on the trial, that in pursuance, either of the written contract of November 6, 1844, adduced by them in evidence, or a subsequent verbal contract made between them and the defendant, on the same day, they had made the parts of one hundred adjusters, (other than the fifty first mentioned in said written contract, and for which the defendant paid the plaintiffs, in cash and by note,) and were proceeding to complete them, when they were directed, by the defendant, to stop working on them, which they accordingly did ; but it was not claimed, that these parts were ever accepted by the defendant. For the value of their labour bestowed on these parts and the materials of which they were composed, the plaintiffs claimed to recover under the third count, which was a general count in indebitatus assumpsit for work and labour done, and materials found and provided about that work, by the plaintiffs for the defendant. The verdict shows, that a part of this claim was allowed by the jury. The defendant insists, that, so far as this claim was embraced in the verdict, it was against the evidence.
Assuming, that, in respect to the unfinished instruments, there was a fulfillment by the plaintiffs of the contract, so far as they had proceeded with them, when he was stopped by the defendant, the question presented by the facts, as thus claimed to be proved by the plaintiffs, is, whether, if one employs another to make a particular chattel out of the ma[50]*50terials of the latter, and during the progress of the work, and before it has assumed the character bargained for, it is stopped by the employer, by whom it has not been accepted, and to whose use it has not been in any manner appropriated, the party employed may maintain an action for work and labour generally against the employer. The court are of opinion, that, whether this question be considered on authority or principle, that action, in such a case, cannot be maintained ; but that a special action on the case against the employer, is the appropriate remedy. In Atkinson & al. v. Bell & al., 8 Barn. & Cress. 277. (15 E. C. L. 216.) S. C. 2 M. & R. 292. A, having a patent for certain spinning machinery, received an order from B to have some spinning frames made for him. A employed C to make the machines for B, and informed the latter, that he had so done. After the machines had been completed, A ordered them to be altered. They were afterwards completed according to this new order, and packed up in boxes for B; and C informed B, that they were ready, but he refused to accept them. It was held, that C could not recover the price from B, in an action for goods bargained and sold, or for work and labour done and materials. This case is decisive of the one before us, and differs from it in no essential particular. The ground of that decision was, that the labour was bestowed on the materials of C, the property in which never having vested in B, such labour was bestowed for the benefit of C, and not of B, and was never appropriated to the use of B. The principle is thus stated in the conclusion of the judgment of Bayley, J., in which he says : “ As to the count for work and labour, if you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labour and your materials to any other person. Having bestowed his labour, at your request, on your materials, he may maintain an action against you for work and labour. But if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labour and material to any other person. No right to maintain any actions vests in him, during the progress of the work ; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may main[51]*51tain an action for goods sold and delivered, or (if the employer refuses it,) a special action on the case for such refusal ; but he cannot maintain an action for work and labour; because the labour was bestowed on his own materials, and for himself, and not for the person who employed him.” Holroyd, J. says: "As to work and labour, the work was done and the labour bestowed on the materials of the maker, in manufacturing an article which never became the property of the defendant. I am of opinion, therefore, that the work was done for the bankrupt, (C,) and not the defendant.” And Littledale, J. also says: "The work and labour and materials were for the benefit of the machine maker, and not for the defendants.”
The principle that work and labour, for which there may be a recovery on the general indebitatus count, must be for the benefit of the defendant and therefore appropriated to his use, is one which does not exclusively apply to labour bestowed on an article contracted to be made by one, out of his own materials, for another. It is a universal principle applicable to all claims on the count for work and labour. And we find no case in which that count has been sustained, where the defendant has not received the benefit of the labour. The difficulty experienced by the courts, has been, to apply the rule, and to determine in what cases the labour should be deemed to have been appropriated to his benefit; examples of which may be seen in Wilkins v. Bromhead & al., 6 Mann. & Gran. 963. (46 E. C. L. 963.,) and the cases there referred to. It is unnecessary to review the eases on that subject, since, in the one now before us, it is very clear, and indeed is conceded, that the defendant never received the benefit of the labour claimed to be bestowed by the plaintiffs.
The reason is very obvious, why, in order to sustain a general count for work and labour, the labour must be bestowed for the benefit of the defendant, or, in other words, come to his use, or be appropriated to him, and with his consent. This action proceeds on the ground of a promise, by the defendant, implied by law, to pay for the value of the plaintiff’s labour. But, on what principle, would the law imply a promise by him, to pay for labour, of which he never had the benefit or use ? The implication of a promise, in all such [52]*52cases, is derived from the fact, that the labour has been beneficial to him. If there is a liabilty to pay for it, where it has not been thus beneficial to him, it would not be on the ground of any promise which the law would imply, but must be founded solely on a special contract between the parties. The implication of a promise, in these cases, is founded on the principle, that justice requires that the defendant should pay the plaintiff the value of his labour, and therefore the law presumes, that he promised to do so; but how does justice require him to pay such value, when he has not been benefited by the plaintiffs’ labour ? He would, indeed, where he had employed the plaintiff to furnish the materials and make an article from them, be liable for a violation of his duty in refusing to accept it, when completed, or preventing him from finishing it, to pay him, not the value of the labour bestowed by him, but the damages which he had sustained, in consequence of such breach of duty; or, if the article was to be made from the defendant’s own materials, the defendant might not be allowed to say, that he had not received the benefit of the plaintiff’s labour: but, in the former case, he would be liable, on the ground of a violation of duty growing out of an express contract; and in such cases, the declaration must state such contract, in order that the rights of the plaintiff, and the violation of it, may appear. This is the character of the plaintiffs’ claim, in the present case. To allow the plaintiff, in such cases, to recover under a general count for work and labour, would be unjust in most cases, and indeed in all, except the unusual one where the injury to the plaintiff in consequence of a non-acceptance of the work, would amount to its full value, (as was the case here under the second count,) because under that general count the plaintiff would recover the whole value of his labour, while he would retain the benefit of it; whereas in an action for not accepting the work, or preventing its execution, he would recover only the amount of the damage to him in consequence of such acts, which would be an exact indemnity to him for the injury he had sustained.
We find no case, which, properly considered, impugns the principles adopted in Atkinson & al. v. Bell & al.; on the contrary, those are numerous in which they have been approved. The cases relied on by the plaintiffs, will be found [53]*53to be either those where the claim was for work and labour merely of the plaintiff, done for the defendant, and of which the latter had received the benefit, by its being appropriated to his use, and where it was not bestowed on an article which was contracted to be made by the plaintiff from his own materials, and it was contemplated that the defendant was to have the benefit of the plaintiff's labour, by receiving the article which was to be thus made ;-or where the labour was bestowed on an article contracted to be made by the plaintiff from his own materials, which, either when completed, or previously, had been accepted by the defendant, or appropriated to his use, by his consent ;-or where the labour was bestowed on the materials of the defendant.
So far, therefore, as the verdict embraces damages on the third count, it is against the evidence.
The authorities cited by the plaintiffs, are decisive against the claim of the defendant, that the contract between the parties in this case, was within the statute of frauds.
The result is, that a new trial should be granted, unless the plaintiffs remit all the damages recovered over the sum of two hundred and fifty-two dollars, and interest, to which they are entitled under the second count.
In this opinion the other Judges concurred.
New trial to be granted, nisi.