SIPLEY v. STICKNEY

Contract, Performance and breach, Implied: common counts. One cannot recover on a contract if he intentionally has failed to perform a part of it, although the part which he has failed to perform may not be of the essence of the contract.

A person employed to carry on a farm in the absence of the owner, whose duty it has been to render true and accurate accounts of the expenses of the farm, can not recover against his employer for his services, if he intentionally has deceived his employer as to the expenses incurred in running the farm by holding back certain bills which ought to have appeared in his accounts, even if this breach of his duty has caused no loss to his employer.

LORING, J. [After the foregoing statement of the case.]

The defendant relies on the doctrine long established in this Commonwealth and last applied in Homer v. Shaw, 177 Mass. 1, where the earlier cases are collected, namely, that one who voluntarily has failed to complete a piece of work to be done under a special contract for an entire sum is without remedy.

The weight of authority is the same in other jurisdictions; Forman Co. Proprietary v. The Ship Liddesdale, A.C. 190; Hansbrough v. Peck, 5 Wall. 497; Scheible v. Klein, 89 Mich. 376; Kohn v. Fandel, 29 Minn. 470; Timberlake v. Thayer, 71 Miss. 279; Smith v. Brady, 17 N.Y. 173; Ginther v. Shultz, 40 Ohio St. 104; Posey v. Garth, 7 Mo. 94; Beach v. Mullin, 5 Vroom, 348; Hartman v. Meighan, 171 Penn. St. 46; although there are decisions in some jurisdictions the other way, the leading case being Britton v. Turner, 6 N.H. 481.

But the doctrine of Homer v. Shaw does not necessarily reach the case at bar. For we assume that in Homer v. Shaw and the other cases supra the breach went to the essence of the contract, and that in the case at bar the failure to return accurate statements might have been held not to go to the essence of the contract. We also assume that a breach after part performance not going to the essence of the contract ordinarily will not prevent a recovery on the contract.

But we are of opinion that a wilful default in the performance of a stipulation not going to the essence of the contract bars a recovery. In this Commonwealth, where there is a remedy under some circumstances outside the contract in case a building is erected on the defendant's land, it is restricted "to cases in which there is an honest intention to go by the contract." Hayward v. Leonard, 7 Pick. 181, 187. To the same effect see Hattin v. Chase, 88 Maine, 237; Kane v. Stone Co. 39 Ohio St. 1; Moore v. Carter, 146 Penn. St. 492; Barrett v. Coal Co. 51 W. Va. 416.

In New York, where under somewhat similar circumstances there is a remedy on the contract, the right to recover is restricted in the same way "to cases of honest intention of contractors to fairly perform their contracts." Crouch v. Gutmann, 134 N.Y. 45, 55. See also Heckmann v. Pinkney, 81 N.Y. 211. To the same effect see Leeds v. Little, 42 Minn. 414; Elliott v. Caldwell, 43 Minn. 357; Linch v. Paris Lumber Grain Elevator Co. 80 Tex. 23.

The ground on which it is held that a default after part performance not going to the essence of the contract does not bar a recovery on the contract is this: Where the parties have not in terms made the performance of the stipulation in question a condition precedent to the payment of the entire price named in the contract, the court is asked to hold that by implication it was the intention of the parties that a failure to perform this stipulation which does not go to the essence of the contract should defeat the plaintiff's right to the contract price. In such cases the court has held that by implication such cannot be taken to have been the intention of the parties, and has left the defendant to his cross action or other remedy for such a breach.

Where the plaintiff has honestly tried to perform his contract, it is one thing to hold that it must have been the intention to make the commission of such a breach a condition precedent. But where the default is wilful the question in our opinion is a different one. Where a contractor commits a wilful default and yet claims the contract price, he in effect claims that he has a right to break his contract. But he no such right. "The doctrine that a breach after part performance is not a defence unless it goes to the essence, does not give a party a right to commit a breach because it does not go to the essence; it merely excuses the breach to the extent just stated after it has been committed." Langdell, Summary of the Law of Contracts, § 168.

In Metcalf on Contracts, pp. 7-9, the general doctrine is laid down that: "If the failure to perform the express contract be intentional, it is such bad faith that he can recover nothing." See also Nelichka v. Esterly, 29 Minn. 146.

For these reasons we are of opinion that the rulings were wrong; and the entry must be

Exceptions sustained.