tract.

Where the

238. A purchaser, who is entitled to rescind sufficient cause, he cannot recover on the cona purchase for frand, but who delays doing so tract, nor on a quantum meruit, for the service for the purpose of affording the vendor, at his rendered. Hair v. Bell, 6 Vt. 35. Philbrook own request, an opportunity of attempting to v. Belknap, 6 Vt. 383. St. Albans Steamboat make the thing sold of value and satisfactory to Co. v. Wilkins, 8 Vt. 54. Brown v. Kimball, the purchaser, is not precluded by such delay 12 Vt. 617. Ripley v. Chipman, 13 Vt. 268. from thereafter, in reasonable time, rescinding 15 Vt. 515. Winn v. Southgate, 17 Vt. 355. the purchase. Powell v. Woodworth, 46 Vt. 378. Mullen v. Gilkinson, 19 Vt. 503. 24 Vt. 515. 239. A party having a right to rescind a Forsyth v. Hastings, 27 Vt. 646. contract on the ground of fraud, elects, after 243. Excuse for quitting. discovery of the fraud, to go on under the con- plaintiff contracted to serve the defendant for This is an affirmance of the contract, six months, but quit the service before the end and concludes him from rescinding. Downer of the term;--Held, that he could not recover v. Smith. 32 Vt. 1. although, (1), he quit under the erroneous be240. Power to stop performance. While lief that according to the legal mode of coma contract is executory, a party has the power puting time under such contracts, his time was to stop the performance on the other side by an up,-and although, (2), the defendant had explicit direction to that effect, thereby sub-consented to his absence during a part of the jecting himself to such damages as will com- term, but he had, on his return, resumed his pensate the other party for being stopped in work under the contract- and, although, (3), the performance on his part, at that point or the defendant had refused to take him back stage in the execution of the contract. Dan-after he had broken his contract by leaving. forth v. Walker, 37 Vt. 239. S. C. 40 257. Winn v. Southgate.

241. The defendant contracted with the 244. It is no sufficient excuse for abandonplaintiff for 1,500 bushels of potatoes, part on ing a contract of service, that the party was hand, and the balance to be purchased by the put to other service than that specified in the plaintiff and to be delivered during the winter contract, if he made no objection thereto. Hair as called for by the defendant. After the de- v. Bell, 6 Vt. 35. Mullen v. Gilkinson, 19 livery of a part, the defendant wrote the plain- Vt. 503.

tiff not to purchase any more potatoes until the 245. Nor, that the employer refused, upon plaintiff should hear from him. The plaintiff the employee's solicitation, to discharge another continued purchasing and the defendant refused servant with whom he had difficulty. Mullen thereafter to receive. In an action for refusing v. Gilkinson.

to receive the potatoes so purchased;-Held, 246. Fault finding and angry words by an that this letter was not a rescission of the con- employer towards his laborer [as stated in the tract by the defendant, but only a refusal to re-case], were held not a sufficient excuse for leavceive under it any potatoes thereafter pur- ing the service. Forsyth v. Hastings, 27 Vt. chased ;-that the defendant had the power to 646.

do this and to stop the further execution of the 247. A girl, hired by the defendant for docontract, subjecting himself to such damages|mestic service for an entire term at a specified therefor as would compensate the plaintiff for price, left such service during the term, for the being so stopped; that the plaintiff had no reason that she "took a dislike" to the defenright to go on and make further purchases and dant's father for some rudeness in his deportincur expense, and throw the risk of the proper-ment towards her in respect to her chastity. ty upon the defendant, and thereby enhance the Held, that this was good cause for leaving, and damages at his expense, without any benefit to that she could recover for the service performhimself ;--and that the rule of damages for this breach, so far as respects the requisite quantity then still to be purchased to fill the contract, was the difference between the price stipulated to be paid, and what it would have cost the plaintiff to procure and deliver the potatoes. Ib; and see Derby v. Johnson, 21 Vt. 17. Nye v. Taggart, 40 Vt. 295.

IV. CERTAIN PARTICULAR CONTRACTS.

ed, although the father was of another separate family, but occupying the same house, and the defendant had no control over him. Patterson v. Gage, 23 Vt. 558.

248. A party contracting to labor for a definite term, at a fixed price for the term or by the month, who fails to fulfil his whole contract by reason of disabling sickness, may recover for his part performance what his services have benefitted the other party, with reference to full | performance—that is, by deducting from the benefit so received any damage sustained by reason of the non-performance of the entire con 242. Entire. If a party, under a contract tract. Patrick v. Putnam, 27 Vt. 759. Fento labor for a specified period, leave the ser- ton v. Clark, 11 Vt. 557. Seaver v. Morse, 20 vice before the expiration of that time without Vt. 620. Hubbard v. Belden, 27 Vt. 645.

1. For service..

249. Nor is he barred of such recovery tice;-Held, that he became immediately en upon a quantum meruit by his neglect, after titled to sue for his wages, having "finished his getting well, to return and complete the service labor." Rossiter v. Cooper, 23 Vt. 522. where the employer would not be bound to receive him -as at the end of two weeks. Hubbard v. Belden. Fenton v. Clark. Seaver v. Morse.

254. Time of payment. In contracts of service for a term, as for so many months at so much per month, where no time is stipulated when payment is to be made, the law implies that it is to be made at the end of the term. Tebo v. Ballard, 36 Vt. 612.

250. Dismissal. The defendant had engaged to labor for the plaintiffs, A and B, for a definite term, at an agreed price. A discharged 255. If, in such case, the servant quit before him from service. B soon after requested the the expiration of the term without fault of the defendant to go to work again under the con- employer, he can not demand or sue for the sertract, which the defendant declined. Held, vices rendered until after the expiration of the that the dismissal by A put an end to the con- term, although then entitled to recover upon a tract as to both A and B, and that neither was quantum meruit. Ib. restored to his rights under it by the request of B. Suttons v. Tyrell, 12 Vt. 79.

256. Power to stop employment. In a contract for labor, the employer has the power 251. Lost time. A laborer hired for a to stop the completion of the work, if he choose definite period is not bound, on the expiration-subjecting himself thereby to the consequenof the specified period, to make up for time ces of a violation of his contract; and the worknecessarily and reasonably lost and in the loss man, after notice to quit work, has no right to of which his employer has aquiesced, by con- continue his labor and claim pay for it. Derby tinuing on in the service of the employer for av. Johnson, 21 Vt. 17.

length of time equal to the time so lost. Nor 257. While the plaintiff was laboring for is the employer bound to receive labor for such the defendant under an entire contract for length of time as compensation for the time service, the defendant, without justifiable cause, lost; but is bound to pay only for the services ordered him to leave his employment, which actually rendered. McDonald v. Montague, 30 the plaintiff soon after did. Held, that he was Vt. 357. entitled to recover for the services performed, 252. Right reserved to terminate. The although he continued to work a few hours plaintiff contracted to labor for the defendant after having been ordered to leave; and at farm work for one year at $15, per month, although, upon a subsequent day, he gave as a each party having the right to terminate the further reason for leaving, that the defendant contract at any time when he should become was going to break down and he was afraid dissatisfied and desire to terminate it. The he should not get his pay. Green v. Hulett, plaintiff worked from December to July, when 22 Vt. 188.

he became dissatisfied and quit. Held, that, 258. Waiver of forfeiture. Where a in leaving, he had only exercised his right farm laborer is hired for (say) four months at a under the contract; that he had fully performed fixed price per month, and quits before the exit and was entitled to recover the full contract piration of the four months without the consent price. Whitcomb v. Gilman, 35 Vt. 297; and he might recover in such case, although his dissatisfaction was capricious and without good reason. Provost v. Harwood, 29 Vt. 219.

of his employer, or wrongfully, an offer by the employer to pay for the whole service at the contract price, or a tender of a sum of money, supposed to be the amount due as thus computed, is a waiver of any forfeiture of wages which the employer might otherwise claim. Patnote v. Sanders, 41 Vt. 66. Seaver v. Morse,

253. The plaintiff agreed to labor for the defendant for one year, for a certain sum to be paid when he should have finished his labor; and it was mutually agreed, that if the plaintiff 20 Vt. 620. So, any acts or declarations, recogshould become dissatisfied and wish to leave the nizing a continued liability, may amount to defendant's employ, he might do so by giving such waiver. Cahill v. Patterson, 30 Vt. 592. fourteen days' notice of his intention to leave; 259. Assent to termination. Where a and the defendant should have the right to dis- contract of service is dissolved by mutual concharge him by giving one day's notice of the sent before the period at which wages become intention to discharge him. Held, that either due, pro rata wages may be recovered without party, upon becoming dissatisfied, was at liber- any express contract to that effect. Rogers v. ty to terminate the contract by giving the speci-Steele, 24 Vt. 513. Green v. Hulett, 22 Vt. 188. fied notice, without apprising the other party (For facts constituting such consent, see cases.) of the grounds of his dissatisfaction, and al- 260. The plaintiff was hired to the defenthough he might have no satisfactory reason for dant for four months at a fixed price per month, such dissatisfaction; and the plaintiff having and during his term of service left voluntarily, quit the defendant's service before the end of but with the consent of the defendant. It not the year, after having given the stipulated no- appearing that the plaintiff had good cause for

leaving;-Held, that he could recover only pro such sum as could be raised upon subscriptionrata on the basis of the contract price. Pat- the defendant to circulate and collect the subnote v. Sanders, 41 Vt. 66. scriptions and he so remained for five years. 261. The plaintiff had contracted to work Held, (1), that the contract of hire continued for the defendant for one year, but left before through the whole time, varied from the conthe year was out, without cause. The plaintiff tract of the first year only as to the amount of told the defendant he was going to leave, and compensation, and perhaps incidentally as to the defendant made no objection, but said he the time of payment; (2), that the amount could get just as good workmen as the plaintiff, which the society might, with reasonable effort and the plaintiff supposed the defendant con- and due diligence, have collected upon the subsented to his leaving. The next day the de- scriptions made, was the measure of the plainfendant told the plaintiff to come, in a day or tiff's compensation under the contract, and two, and he would settle with him. In about could be recovered in an action on book as for a ten days, the plaintiff went to settle, when the price agreed. Myers v. Baptist Society, 38 Vt. defendant said his books were at the office of 614.

his attorney, and told him to go there. The defendant went and met the attorney. The defendant's books there showed a balance of $57.22 due the plaintiff. The defendant then claimed $50 damages for leaving his service, and offered to pay the difference, $7.22. The defendant had never before claimed such damage. Held, that the plaintiff was not liable for damages, and was entitled to recover, pro rata, for the time of his service. Boyle v. Parker, 46 Vt. 343; and see Rogers v. Steele, 24 Vt. 513.

2. Contract of indemnity.

265. Indemnity proper. An action does not lie on a contract of indemnity, unless and until the plaintiff has sustained the loss or damage guaranteed against. Eureka Marble Co. v. Windsor Mfg. Co., 47 Vt. 430.

266. A condition simply to indemnify and save harmless from the payment of a debt, is not broken until the obligee has been compelled to pay, or, having become liable, has actually paid or been put to expense. St. Albans v. Curtis, 1 D. Chip. 164.

262. Board. The plaintiff labored for the defendant, the defendant to board him in a particular way at a certain place. Held, that the 267. The allowance in the probate court of plaintiff could not board himself elsewhere and a claim against the estate of a surety, is such a charge the expense to the defendant, no failure damnification as entitles the surety's adminison the part of the defendant being shown. trator to sue the principal upon his contract of Griffin v. Tyson, 17 Vt. 35. indemnity. Pond v. Warner, 2 Vt. 532.

263. Clothes. The plaintiff, an old man 268. A, as surety for B, executed with him a of feeble mind, agreed to work for the defend- note to C, and, after the note had become due, ant for his board and clothes, no length of ser- B gave A a mortgage conditioned that he vice being specified. He worked from the last would pay said note "so as wholly to indemof February to the first of August, boarding nify and save A harmless from his liability on with the defendant, and then left. When he said note." Held, that the mortgage was not came, he was poorly clad. The defendant fur- forfeited by the mere non-payment of the note nished him no new clothes, but only saw that by B, it being but a common contract of inhis old clothes were mended and taken care of. demnity; but if the mortgage had been executIn an action to recover his wages, the auditor ed before the note fell due it would probably found that his labor was worth $40, and that have been otherwise. Ib. this sum was no more than was requisite to 269. The general proposition, that there can supply him with things that he actually stood be no contribution nor indemnity between in need of, to enable him to live comfortably wrong doers, is subject to the exception, that through the fall and winter. Held, that the where one party induces another to do an act agreement to furnish clothes was not limited to which is not legally supportable, and yet is not the time while the plaintiff worked, but must clearly in itself a breach of law, the party so be considered in relation to the whole year, to inducing shall be answerable to the other for the season of the year in which he worked, the the consequences. But this inducement must value of his services, the difficulty of getting consist of an express undertaking to indemnify work at other seasons of the year, and the cloth- against the consequences of such act, or omis ing he then had and might reasonably require sion to act, or the circumstances attending the for the coming winter, and that he could recov- transaction, as between the parties, must be er the $40. Spencer v. Storrs, 38 Vt. 156. such that the law will therefrom imply an un264. Ministerial labor. The defendant, dertaking, or raise an obligation on the part of a religious society, hired the plaintiff as their the one to indemnify the other. Pierpoint, C. pastor for one year at $300. At the close of J., in Spaulding v. Oakes, 42 Vt. 343. the first year the plaintiff agreed to remain for 270. Spaulding had been compelled to pay

3. Agistment.

a judgment recovered against him and Oakes,| for injury done by a vicious ram owned by them in common, but running in the pasture of 274. The contract of agistment implies the Oakes and more immediately under his charge, duty on the agister to restrain the animals as reported in Oakes v. Spaulding & Oakes, 40 within his inclosure by lawful fences, unless Vt. 347. In an action by Spaulding against there is some special understanding which reOakes for indemnity ;-Held, by a majority, lieves him. If for want of such fences the anithat the grounds of recovery in that case were not such as to raise the obligation of indemnity.

Ib.

mals escape and thereby are lost or suffer damage, he is liable therefor. Sargent v. Slack, 47

Vt. 674.

271. Contract to pay. The plaintiff hav- 275. The plaintiff took of the defendant ing executed certain notes to a third person, some cattle and sheep to pasture for the season, the defendant agreed with the plaintiff in writ- at a fixed price per week, but there was no exing, for a full consideration received, to pay press stipulation as to the manner of keeping, said notes. Held, that this was not a contract nor as to the care the plaintiff should take of to indemnify, but to pay, and that the statute them. Part of the sheep were wethers, and of limitations commenced to run from the ma-part ewes. Through the plaintiff's negligence turity of the notes. Crofoot v. Moore, 4 Vt. and want of care in restraining his rams from

204.

going at large between Aug. 1 and Dec. 1, as 272. The plaintiff, at the defendant's re- required by statute, they got with the ewes, quest, executed a receipt to an officer for prop- which, in consequence, had lambs out of season, erty attached upon a writ of A v. B, upon the and thereby the lambs were lost. In an action defendant's promise to indemnify and relieve of book account to recover the agreed price for him by paying the debt in that suit, within a keeping the cattle and sheep;—Held, that this few days. The defendant did not pay the negligence of the plaintiff was a breach of the debt, nor in any other way relieve the plaintiff, but the plaintiff stood chargeable upon the receipt, although he had paid nothing. Held, that this was more than a mere contract of indemnity, and was broken by the failure of the defendant to pay as agreed; that the plaintiff 39 Vt. 511. then had an immediate right of action, and could recover to the extent of his liability. Hubbard v. Billings, 35 Vt. 599.

contract implied as to the exercise of proper care in the keeping of the property; that the contract was entire; and that the defendant could recoup the damage to the ewes against the plaintiff's entire claim. Phelps v. Parish,

4. Contracts in the alternative.

273. Special case. The defendant, claim-| 276. Where a contract is in the alternative, ing to own a horse in the plaintiff's possession to do one of two things, the right of election is which the plaintiff had purchased of W, prom- in the party speaking or promising. Mayer v. ised the plaintiff, that if he would deliver the Darinell, 29 Vt. 298. Patchin v. Swift, 21 Vt. horse to him, and would bring suit against W 292.

for having fraudulently sold the horse as his 277. But if the contract be to do one of two own, and should fail in such suit to recover things by a day certain, and the day elapse damages, he, the defendant, would indemnify without election by the promisor, then the right and make the plaintiff good for his damage, of election passes to the promisee. Patchin v. loss and expense. The plaintiff thereupon de- Swift; and see Russell v. Ormsbee, 10 Vt. 274. livered the horse to the defendant, and brought 278. L bought a horse of O and delivered such suit against W, but gave no notice thereof him a note against a third person in part payto the defendant, and failed in the suit. Held, ment, and agreed to give good security for the (1), that the agreement was upon sufficient con- balance by a day named, or else return the sideration; (2), that the record in the suit horse, and the note should be the property of against W was evidence to prove the fact of O. Having failed to procure the security, L bringing the suit and the failure to recover, and returned the horse and demanded the note. that this entitled the plaintiff to recover under received the horse, but refused to surrender the the contract; (3), that, although that judgment note. Held, that the note became the property might be treated as inter alios, and so not con- of O. Larabee v. Ovit, 4 Vt. 45. clusive against the title of the defendant, yet, 279. Assumpsit upon the following instruas there was no proof offered in this case that ment: "In consideration of four hundred dolthe title to the horse was in any one else than lars received of A. Knight I promise to deliver the plaintiff who had the possession, the value to him, bearer, two hundred barrels of crude of the horse should be included in the plain- oil at the Connecticut River Oil Well in Bothtiff's damages. Lincoln v. Blanchard, 17 Vt. well, C. W., reserving the right to pay him

464.

twenty-five cents per barrel, on payment of the four hundred dollars above mentioned; said oil

to be delivered any time within three months."| 286. Where a promise is made to a person It was the custom, known to Knight (the plain- from whom the consideration moved, but to be tiff), for the purchaser to furnish barrels for his performed to another and for another's benefit, oil at the well. Held, to be a note for two hun--quare, whether the latter can, in any case, dred barrels of oil to be delivered at any time maintain an action thereon. Ib. 11 Vt. 80. within three months, and to be taken in barrels 30 Vt. 284. 47 Vt. 345.

to be furnished by the plaintiff, unless the de- 287. Where the defendant received property fendant should choose to pay four hundred and from A to convert into money, under a promise fifty dollars in money, in lieu of the oil;-that to A to pay it to the plaintiff, a creditor of A, the plaintiff was not bound to furnish barrels, and the defendant did convert the property inwithout proper notice that the defendants had to money ;-Held, that the plaintiff might sue elected to pay in oil; and that not having given in his own name for the money. Phelps v. such notice, nor paid the money within the time Conant, 30 Vt. 277. named, the defendants were liable for the value 288. In such case, after the money is realof the oil. Knight v. Petroleum Co., 44 Vt. 472. ized, it becomes absolutely the money of the 280. Where the defendant agreed to pay the plaintiff in the defendant's hands. Then the plaintiff for a job of work when completed, or law implies a promise directly from the defendgive his note therefor payable in a year, at his ant to the plaintiff. Redfield, C. J. Ib. 284. election, and he refused to give his note;-Held, that he became immediately liable upon such refusal, and the plaintiff recovered in the action of book account. Gilman v. Hall, 11 Vt. 510.

V. ACTION ON SIMPLE CONTRACT.

1. Parties.

289. But where the contract is special, or to the extent that it is special, it can be sued only in the name of the party with whom it is made, and from whom the consideration moves. Ib.

290. Under a declaration counting upon a promise made to the plaintiff's deceased husband, upon a consideration moving from him, that the defendant would pay to her, in case of her husband's decease, a certain sum ;-Held, 281. Plaintiff. In the case of joint owners that the suit could not be maintained in her of property sold by one, the purchaser not name; but, quære, whether upon a proper deknowing that others were interested, an action claration this might not be done. Fugure v. on such contract may be maintained, either by Mutual Socy. of St. Joseph, 46 Vt. 362. the one with whom the contract was actually 291. In assumpsit upon a policy of life inmade, or in the names of the parties really in-surance by the administrator of the insured, the terested. Hilliker v. Loop, 5 Vt. 116. declaration alleged the consideration as moving from the insured and the promise to pay to the wife and children of the insured, or their legal

282. A sued B upon a contract signed by B, of the following tenor: "Received of A $150 to be paid in obligations against some good man representative. On demurrer, held, that this or men, to be on interest, for LC when he comes of age, on account of said A." B set up a release by L C after he became of age. Held, that the contract was with A to pay him, and that LC could not sue upon it, nor release it. Tuttle v. Catlin, 1 D. Chip. 366.

283. As respects simple contracts, the promise, to whomsoever made, inures and is deemed a promise to him who has the beneficial interest, that is, the person from whom the consideration moves. Warden v. Burnham, 8 Vt. 390.

was not an averment of a promise to the insured, to pay, &c., but a promise to the wife, and that the declaration showed a case upon which the plaintiff could not recover. Davenport v. Mutual Life Ass'n., 47 Vt. 528.

292. In assumpsit for lumber sold, which was the property of the plaintiff and W, the plaintiff's evidence was that he sold it in his own name and on his own account; while the defendant's was, that the plaintiff acted for himself and W in making the sale. Held, that the plaintiff's right depended upon the disputed 284. On a contract to take certain shares in fact, which was a question for the jury; and the stock of the corporation and to pay the trea- that the court erred in ruling that the action surer all assessments, &c.;--Held, that an ac- was rightly brought. Leahey v. Allen, 47 Vt. tion for the assessments could not be brought in 463. the name of the treasurer, but only in that of the corporation. Whitelaw v. Cahoon, 1 D. Chip.

295.

293. The legal interest in a contract is in the person from whom the consideration passed and to whom the promise was made; and he alone 285. Where the consideration moves from a can sustain an action upon it, although it was person principally interested in a contract, and made for the benefit of a third person. Hall v. the contract is made with him, one collaterally Huntoon, 17 Vt. 244. Pangborn v. Saxton, 11 interested therein cannot sue thereon in his own 79. 18 Vt. 589. name. Crampton v. Ballard, 10 Vt. 251. 17 Vt. 251. 18 Vt. 589. 46 Vt. 369.

294. A declaration counting upon a sale by the plaintiff to the defendant and a promise