Page:The Green Bag (1889–1914), Volume 03.pdf/95

 74

nothing so agreeable, temperate, and com plete seems to have been written about Gib son, observes that not before this ( 18 1 6) does the Judge's intellect seem to have been seriously roused. There was now, it may be supposed, less of the violin, less pleasant gossiping at taverns, and much more solitary confinement with Coke, whose influence upon him Judge Porter notices with empha sis. In Algeo v. Algeo, io S. & R. 235, decided in 1823, we find an opinion of Gib son, delivered in the absence of Tilghman, C. J. It is an early specimen of that power of condensed statement which the Chief-Jus tice brought at last to such chiselled per fection. Algeo v. Algeo raises one of the most interesting discussions that can occur in the law of contracts. A hires B to work during a specified period for an agreed total sum. Before the time is up, B "quits" vol untarily it may be, or so compelled by A, against whom he now declares in the com mon counts, and A pleads the general issue. Comparisons, whatever else they may be, are interesting; and it is worth while here to speak of another Chief-Justice's opinion in a similar and famous case, — Britton v. Tur ner, 6 N. H. 481. Judge Parker was so proud of what he wrote in that case, that he had his portrait painted with his finger in Volume 6 at its proper page. Both judges find previous decisions irreconcilable. From Gibson's Opinion (one From Parker's Opinion (ten page). pages.) "Here the plaintiff below claimed to recover for the whole time for which he had been employed, on the ground that an act the per formance of which has been prevented by the person for whose benefit it was to be performed, shall as to him be taken to have been actually performed. This holds so far as to give an action on the contract where actual performance would other wise have been a condi tion precedent; but not to create an implied promise

"It may be assumed that the labor performed by the plaintiff, and for which he seeks to recover a compen sation in this action, was commenced under a special contract to labor for the de fendant the term of one year, for the sum of one hundred and twenty dollars, and that the plaintiff has labored but a portion of that time, and has volunta rily failed to complete the entire contract. It is clear, then, that he is not entitled to recover upon the contract

to compensate the party as if the act were actually per formed. . . . There is never such a thing, in fact, as the promise laid in a general count : it is the con sideration for which the promise is supposed to be made, that is the substan tial groundwork of this ac tion. But the considera tion is not the execution of a contract, but services ren dered or work and labor done, and this is the reason that this precedent contract, where there is one, must have been executed, the law implying a promise only from the acts of the plain tiff and never from acts of prevention by the defend ant. ... In the case before us, however, it is clear the plaintiff could re cover a compensation pro portionate to the time dur ing which he was actually in the defendant's service."

itself, because the service which was to entitle him to the sum agreed upon, has never been performed. ... We hold, then, that where a party undertakes to pay upon a special contract for the performance of labor, or the furnishing of materials, he is not to be charged upon such special agreement un til the money is earned ac cording to the terms of it, and where the parties have made an express contract the law will not imply and raise a contract different from that which the parties have entered into, except upon some farther transac tion between the parties. . . . But if, where a con tract is made of such a character a party actually received labor or materials, and thereby derives a bene fit and advantages, over and above the damage which has resulted from the breach of the contract by the other party, the labor actuallydone, and the value received furnish a new considera tion, and the law thereupon raises a promise to pay to the extent of the reasonable worth of such excesses. . . . 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 con tract, no other can be im plied, even upon the sub sequent performance of service, — is not properlyapplicable to this species of contract, where a beneficial service has been actually performed."

These parallel extracts, it is believed, are as nearly as possible identical in what they express; and it is also believed that if both opinions be examined it will be clearer than it is from the portions of them here cited,