Christiancv J.:
Whether the written memorandum signed by the de-. fendants below, when taken in connection with the whole transaction between the parties, was understood by all of them as a contract, might have been a fair question of fact for the jury. But admitting the contract to have been proved in all respects as claimed by the plaintiff, and that defendants below wrongfully countermanded the order for-the engine, after the plaintiff had, in good faith, made most of the castings, and done a large part of the work; the first question which arises is, whether the. plaintiff was entitled to recover upon the common counts for work and labor-, as upon a quantum meruit? As to the materials it is admit-, ted he could not, though contained in the same count; as they still belonged to plaintiff, and were never delivered to, defendants.
In the case of a contract for a certain amount of labor, or for work for a specified period- — -when the labor is to. be performed on the materials or property, or in carrying-on the business, of the defendant, 'or when the defendant has otherwise accepted or appropriated the labor performed, if the defendant prevent the plaintiff from performing the whole, or wrongfully discharge him from his employment, [301]*301■or order Mm to stop the work, or refuse to pay as he has agreed (when payments become due in the progress of the work),, or disable himself from performing, or unqualifiedly refuse to perform his part of the contract, the plaintiff may, without further performance, elect to sue upon the contract :and recover damages for the breach, or treat the contract as at an end, and sue in general assumpsit for the work and labor actually performed. — Hall v. Rupley, 10 Barr, 231; Moulton v. Trask, 9 Metc. 59; Derby v. Johnson, 21 21; Canada v. Canada, 6 Cush. 15; Draper v. Randolph. 4 Harrington, 454; Webster v. Enfield, 5 Gilm. 298.
And M such (cases he may, it would seem, under the common indebitatus count, recover the contract price, where the case is such that the labor done can be measured or apportioned by the contract rate; or whether it can be so •apportionated or not, he may under the quantum meruit recover what it is reasonably worth. But in all such cases, the plaintiff, having appropriated and received the benefit of the labor (or, what is equivalent, having induced the plaintiff to expend Ms labor for him, and, if properly performed ■according to his desire, the defendant being estopped to deny the benefit), a duty is imposed upon the defendant to pay for the labor thus performed. This duty the law enforces under the fiction of an implied contract, growing out of the reception or appropriation of the plaintiff’s labor.
It is therefore evident, 1st: that in all the cases supposed, an implied contract would have arisen, and the plaintiff might have recovered upon a quantum, meruit, if no special contract had ever been made. 2d: That in the like cases (where the value of the work done could not, as it probably could not in" the case before us, be apportioned by the contract price) the value or fair price of the work done, would necessarily constitute the true measure of damages. And in all such cases, as first supposed, either the •contract. price, or the reasonable worth of the labor done, ■would measure the damages.
[302]*302Similar considerations and like rules would, doubtless* equally apply to contracts for furnishing materials, and for the sale and delivery of personal property, when, after part of the materials or property has been received and appropriated by, or vested in the defendant, he has prevented the plaintiff from performing, or authorized him to treat the contract as at an end, on any of the grounds above mentioned.
But the case before us stands upon very different grounds. Here the contract, as claimed to have been proved, was in-no just sense a contract for work and labor, nor could the plaintiff, while at work upon the engine, be properly said to be engaged in the business of the defendants. It was substantially a contract for the sale of an engine, to be made and furnished by the plaintiff, to the defendants, from the shop, and, of course, from the materials of the plaintiff. The defendants had no interest in the materials, nor any concern with the amount of the labor. They were to pay a certain price for the engine when completed. Engines, it is true* are not constructed without labor; the labor, therefore, constitutes part of the value of the engine. But this would have been equally true if the contract in this case had been for an engine already completed.
The labor of the plaintiff was upon his own materials? to increase their value, for the purpose of effecting a sale to defendants when completed. No title in any part of the materials was to vest in defendants till the whole should be completed by plaintiff, and delivered to defendants. The plaintiff might have sold any of the materials, after the work was performed, or the whole engine when completed, at any time before delivery to, or acceptance by defendants.
Whether, therefore, the labor actually performed on these materials, when the defendants refused to go on with the contract, or prevented the further performance* had enhanced or diminished the value of the materials, and how much, would be a necessary question of fact* in arriving at [303]*303any proper measure of damages. The value of the work and labor does not, therefore, in such a case, constitute the proper criterion or measure of damages. If the value of the materials has been enhanced by the labor, the plaintiff, still owning the materials, has already received compensation to the extent of the increased value; and to give him damages to the full value of the labor, would give him more than a compensation. If the value of the materials has been diminished, the value of the labor would not make the compensation adequate to the loss. It could be only in the single case where the materials have neither been increased nor diminished by the labor, that the value of the labor would measure the damages. Such a case could seldom occur, and whether it could or not, it must always be a question of fact in the case, whether the value of the materials does remain the same, or whether it has been increased, or diminished, and to what extent.
Again, as the defendants never received the engine, nor any of the materials, the title and possession still remaining in the plaintiff, and the defendants never having received or appropriated the labor of the plaintiff, if the same work had been performed under the like circumstances, without any actual or special contract, the law would have imposed no duty upon the defendants, and therefore implies no contract on their part to pay for the work done. — 1 Chit. Pl. 382; Atkinson v. Bell, 8 B. & C. 277; Allen v. Jarvis, 20 Conn. 38.
The only contract, therefore, upon which the plaintiff can rely to pay him for the labor, is the special contract. No duty is imposed upon the defendants otherwise than by this. This contract, therefore, must form the basis of the plaintiff’s action. He must declare upon it, and claim his ’ damages for the breach of it, or for being wrongfully prevented from performing it. His damages will then be the actual damages which he has suffered from the refusal of the defendants to accept the articles, or in consequence [304]
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Christiancv J.:
Whether the written memorandum signed by the de-. fendants below, when taken in connection with the whole transaction between the parties, was understood by all of them as a contract, might have been a fair question of fact for the jury. But admitting the contract to have been proved in all respects as claimed by the plaintiff, and that defendants below wrongfully countermanded the order for-the engine, after the plaintiff had, in good faith, made most of the castings, and done a large part of the work; the first question which arises is, whether the. plaintiff was entitled to recover upon the common counts for work and labor-, as upon a quantum meruit? As to the materials it is admit-, ted he could not, though contained in the same count; as they still belonged to plaintiff, and were never delivered to, defendants.
In the case of a contract for a certain amount of labor, or for work for a specified period- — -when the labor is to. be performed on the materials or property, or in carrying-on the business, of the defendant, 'or when the defendant has otherwise accepted or appropriated the labor performed, if the defendant prevent the plaintiff from performing the whole, or wrongfully discharge him from his employment, [301]*301■or order Mm to stop the work, or refuse to pay as he has agreed (when payments become due in the progress of the work),, or disable himself from performing, or unqualifiedly refuse to perform his part of the contract, the plaintiff may, without further performance, elect to sue upon the contract :and recover damages for the breach, or treat the contract as at an end, and sue in general assumpsit for the work and labor actually performed. — Hall v. Rupley, 10 Barr, 231; Moulton v. Trask, 9 Metc. 59; Derby v. Johnson, 21 21; Canada v. Canada, 6 Cush. 15; Draper v. Randolph. 4 Harrington, 454; Webster v. Enfield, 5 Gilm. 298.
And M such (cases he may, it would seem, under the common indebitatus count, recover the contract price, where the case is such that the labor done can be measured or apportioned by the contract rate; or whether it can be so •apportionated or not, he may under the quantum meruit recover what it is reasonably worth. But in all such cases, the plaintiff, having appropriated and received the benefit of the labor (or, what is equivalent, having induced the plaintiff to expend Ms labor for him, and, if properly performed ■according to his desire, the defendant being estopped to deny the benefit), a duty is imposed upon the defendant to pay for the labor thus performed. This duty the law enforces under the fiction of an implied contract, growing out of the reception or appropriation of the plaintiff’s labor.
It is therefore evident, 1st: that in all the cases supposed, an implied contract would have arisen, and the plaintiff might have recovered upon a quantum, meruit, if no special contract had ever been made. 2d: That in the like cases (where the value of the work done could not, as it probably could not in" the case before us, be apportioned by the contract price) the value or fair price of the work done, would necessarily constitute the true measure of damages. And in all such cases, as first supposed, either the •contract. price, or the reasonable worth of the labor done, ■would measure the damages.
[302]*302Similar considerations and like rules would, doubtless* equally apply to contracts for furnishing materials, and for the sale and delivery of personal property, when, after part of the materials or property has been received and appropriated by, or vested in the defendant, he has prevented the plaintiff from performing, or authorized him to treat the contract as at an end, on any of the grounds above mentioned.
But the case before us stands upon very different grounds. Here the contract, as claimed to have been proved, was in-no just sense a contract for work and labor, nor could the plaintiff, while at work upon the engine, be properly said to be engaged in the business of the defendants. It was substantially a contract for the sale of an engine, to be made and furnished by the plaintiff, to the defendants, from the shop, and, of course, from the materials of the plaintiff. The defendants had no interest in the materials, nor any concern with the amount of the labor. They were to pay a certain price for the engine when completed. Engines, it is true* are not constructed without labor; the labor, therefore, constitutes part of the value of the engine. But this would have been equally true if the contract in this case had been for an engine already completed.
The labor of the plaintiff was upon his own materials? to increase their value, for the purpose of effecting a sale to defendants when completed. No title in any part of the materials was to vest in defendants till the whole should be completed by plaintiff, and delivered to defendants. The plaintiff might have sold any of the materials, after the work was performed, or the whole engine when completed, at any time before delivery to, or acceptance by defendants.
Whether, therefore, the labor actually performed on these materials, when the defendants refused to go on with the contract, or prevented the further performance* had enhanced or diminished the value of the materials, and how much, would be a necessary question of fact* in arriving at [303]*303any proper measure of damages. The value of the work and labor does not, therefore, in such a case, constitute the proper criterion or measure of damages. If the value of the materials has been enhanced by the labor, the plaintiff, still owning the materials, has already received compensation to the extent of the increased value; and to give him damages to the full value of the labor, would give him more than a compensation. If the value of the materials has been diminished, the value of the labor would not make the compensation adequate to the loss. It could be only in the single case where the materials have neither been increased nor diminished by the labor, that the value of the labor would measure the damages. Such a case could seldom occur, and whether it could or not, it must always be a question of fact in the case, whether the value of the materials does remain the same, or whether it has been increased, or diminished, and to what extent.
Again, as the defendants never received the engine, nor any of the materials, the title and possession still remaining in the plaintiff, and the defendants never having received or appropriated the labor of the plaintiff, if the same work had been performed under the like circumstances, without any actual or special contract, the law would have imposed no duty upon the defendants, and therefore implies no contract on their part to pay for the work done. — 1 Chit. Pl. 382; Atkinson v. Bell, 8 B. & C. 277; Allen v. Jarvis, 20 Conn. 38.
The only contract, therefore, upon which the plaintiff can rely to pay him for the labor, is the special contract. No duty is imposed upon the defendants otherwise than by this. This contract, therefore, must form the basis of the plaintiff’s action. He must declare upon it, and claim his ’ damages for the breach of it, or for being wrongfully prevented from performing it. His damages will then be the actual damages which he has suffered from the refusal of the defendants to accept the articles, or in consequence [304]*304of being prevented from its performance; and these damages may be more or less than the value of the labor. This case, therefore, in this respect, comes directly within the principle recognized in the case of Atkinson v. Bell, above cited, and in Allen v. Jarvis, 20 Conn. 38 (a well reasoned case, which we entirely approve). And see Moody v. Brown, 34 Me. 107, where the same principle is recognized.
But it was claimed by plaintiff’s counsel that no action could have been maintained on the special contract until fully performed, and the engine delivered or tendered to the defendants; that the unqualified refusal of the defendants to take the engine, when it should be completed, was not a prevention of performance which would authorize the plaintiff to sue upon the contract on that ground. We think it was, and that such absolute refusal is to be considered in the same light, as respects the plaintiff’s remedy, as an absolute, physical prevention by the defendants. This view will be found fully sustained by the following cases: Cost v. Ambergate Railway Co. 6 E. L. & Eq. 230; Derby v. Johnson, 21 Vt. 21; Clark v. Marsiglia, 1 Denio, 317; Hochster v. De Latour, 20 L. & Eq. 157. In the latter case, it was held that a refusal of the employer before the work commenced, to allow it to be done, authorized an immediate action upon the contract.
So, a refusal to • make any payment, which, by the contract, is to be made during the progress of the work, has the same effect. — Draper v. Randolph, above cited; and see Hoagland v. Moore, 2 Blackf. 167; Webster v. Enfield, 5 Gilm. 298; Withers v. Reynolds, 2 B. & Ad. 882. See this whole subject ably discussed, and the authorities cited, in 2 Smith’s Lead. Cas. (Amer. Edit.) 22 to 38; and for what will amount to prevention, see note of Hare & Wallace to same, 40. As to mode of declaring on the contract, — Ibid. 41, and 1 Chit. Pl. 326.
It would be unreasonable and unjust to hold that the plaintiff, in this case, after the positive countermand of the [305]*305defendants’ order, was, nevertheless, bound to go on and complete the engine, and thereby increase the damages, before he could recover for the work already done. The defendants can not complain that the plaintiff has given credit to their assertion. The law will not require a vain thing. And it is certainly, in such cases, much better for both parties to hold the party thus notified to be fully justified in stopping the work, as it lessens the damages the other party has to pay, and relieves the party who has to do the work from expending further labor, for which he has fair notice he is to expect no payment. And it is certainly very questionable whether the party thus notified has a right to go on after such notice, to increase the amount of his own damages. In Ciarle v. Marsiglia, above cited, it was held he had no such right, and that the employer has a right (in a contract for work and labor) to stop the work, if he choose, subjecting himself to the consequences of a breach of his contract, and that the workman, after notice to quit work, has no right to continue his labor, and recover pay for it. This doctrine is fully approved in Derby v. Johnson, above cited. This would seem to be good sense, and therefore sound law. And it would seem that any other rule must tend to the injury, and, in many cases, to the ruin of all parties.
It is unnecessary here to review the authorities cited by the plaintiff’s counsel. Most, if not all of them, when carefully examined, will be found entirely in harmony with the views above expressed. The result of them will be found well and fairly stated, and evidently from a careful examination, in Allen v. Jarvis, above cited. I have made the same examination, and come to the same result.
It may, however, be proper here to say, that in the case of Planché v. Colburn, 8 Bing. 14, upon which much reliance was placed by the counsel for the defendant in error, there was a special count upon the contract, as well as the common counts, and it may be inferred from the [306]*306opinion, that the plaintiff was. allowed to retain his verdict upon the special count. And we have the high authority of Lord Campbell that such was the case. — See Hochster v. De Latour, 20 E. L. & Eq. 163, above cited. As the conclusion at which we have arrived upon this point disposes of the whole case, it becomes unnecessary, and even improper, to discuss' the other questions raised in the case.
And, as we do not conceive that under a writ of error we have any power to amend the declaration in this respect, the judgment must be reversed.
The other Justices concurred.