FORBES v. APPLEYARD

Contract, Rescission. The defendant, a promoter of electric lines with certain projects on hand, employed the plaintiff, an electrical engineer, at the rate of $2,500 a year to perform professional services in regard to certain of these projects one of which might require six months and another a year, the plaintiff mentioning at the time of his employment, that he already had undertaken to make a certain report which would require him to be away at a certain time for about a week. Later the plaintiff notified the defendant that he should have to go away for a little while to complete the report mentioned, whereupon the defendant wrote to him that if he intended to go "it would be better to take a leave of absence without pay for thirty days," as that would give him sufficient time to make his report without interfering with the defendant's business. The plaintiff informed the defendant that he did not consider the proposition in accordance with their agreement, but did not remember what answer the defendant made to this. The plaintiff went away, made his report and returned at the end of five days. He then had conversations with the defendant in regard to the work and expressed a willingness and desire to go on with it, but the plaintiff testified, that at this time the defendant still considered him on leave of absence. Later the plaintiff sued on an account annexed for services during this period, having been paid in full up to the time of his absence. Held, that as no definite time or no definite task was fixed by the contract, the defendant's insisting that the plaintiff's stipulated absence should take the form of a leave of absence without pay, if a breach of the contract, could not be treated by the plaintiff as a repudiation of it, and, even if it could have been so treated, the plaintiff had failed to exercise an election to rescind if he ever had it.

HOLMES, C.J.

This is an action upon an account annexed for services as an electrical engineer. The plaintiff's case is that he was employed by the defendant, and that the defendant broke the contract before it was completed. Therefore we assume that the suit is for a quantum meruit. See Canada v. Canada, 6 Cush. 15; Simmons v. Lawrence Duck Co. 133 Mass. 298, 300. On that footing the bill of particulars charges three items: professional services from September 8 to November 3, 1900, inclusive; like services on November 12, and again from December 5 to December 8, both inclusive. The other items were for expenses. At the trial, as we understand the evidence, it was not denied that the plaintiff had been paid for his services and expenses up to November 1, and the judge, with the defendant's consent, directed a verdict for the plaintiff for the item of November 12 and for expenses incurred after November 1, and would not allow the plaintiff to go to the jury for anything more. The plaintiff excepted.

The course taken by the judge perhaps implied that the plaintiff might recover on a quantum meruit if the defendant had broken the contract, and in this, as a general proposition, there is no doubt that he was right. Fitzgerald v. Allen, 128 Mass. 232. Cook v. Gray, 133 Mass. 106, 111. Simmons v. Lawrence Duck Co. 133 Mass. 298, 300. Goodman v. Pocock, 15 Q.B. 576. De Bernardy v. Harding, 8 Exch. 822. Bull v. Schuberth, 2 Md. 38, 57. 2 Smith Lead. Cas. (10th ed.) 32, 40 et seq., note to Cutter v. Powell. It will be noticed that the plaintiff did not seek to recover for loss of time or for anything except services actually rendered, so that the case does not present the question whether his rights with regard to such an item would be different in this action from what they would have been in a suit upon the contract. See Goodman v. Pocock, 15 Q.B. 576, 583, 584; Johnson v. Arnold, 2 Cush. 46; 2 Smith Lead. Cas. (10th ed.) 46. Therefore the most obvious question is whether there was any evidence of services from November 1 to November 3, or from December 5 to December 8. The defendant, it is true, denies that he made the contract in such form as to bind himself personally and that he broke it, but it is too plain for argument that there was evidence of personal liability for the jury, and we assume for the purposes of decision that there was some evidence of a breach.

We see no evidence that services were rendered during the times mentioned. On November 1 the plaintiff had notice that the defendant considered him on leave of absence for a month without pay, and at the time seems to have yielded a dissatisfied assent, although the defendant's taking this position now is relied on as the breach. In December the plaintiff says that the defendant still considered him on leave of absence. There is no evidence of work done during the earlier days in question, and nothing upon which a jury fairly could base a finding for December. Moreover, if the plaintiff after the breach relied upon, saw fit to do further work mutually understood to be under the contract, he would be confined for his compensation to a suit upon the contract. Hyland v. Giddings, 11 Gray, 232.

We suppose, however, that the case is brought here upon a different and far more sweeping contention, although if we are right in our surmise the proposition is not developed very plainly. The plaintiff probably wanted to go to the jury for additional compensation for the time for which he had been paid, on the ground that the whole matter was set at large by the defendant's alleged breach of contract.

The plaintiff has not put himself in the position of rescinding the contract from the beginning. He has not returned or offered to return what he has received, but on the contrary has credited it, and, as he received the money under the contract, he must be taken to have credited it under the contract. How far this course is consistent with a quantum meruit for any services we need not consider. It hardly is consistent with the position which we are supposing now to be assumed. Trecy v. Jefts, 149 Mass. 211, 212.

But there are further difficulties which seem to us too great to be overcome. It may be admitted that in some entire contracts a breach on one side pending performance would warrant a rescission and a return of what had been received as preliminary to a recovery outside the contract for all that had been done. On the other hand, in other cases the entirety of the contract at the outset might not be sufficient warrant for that course. It might be apparent that performance and payment were so far set against each other as equivalent that the past could not be disturbed. See Langdell, Contracts, § 128. With regard to contracts of service broken after part performance, a doubt has been expressed by a very eminent judge whether there ever could be a rescission properly so called, or anything more than an emancipation of the servant from the contract for the future, as the past cannot be undone. Bowen, L.J. in Boston Deep Sea Fishing Ice Co. v. Ansell, 39 Ch. D. 339, 365. However this may be, the contract in this case as stated by the plaintiff seems to us too indefinite and too nearly an employment at will to warrant the course which the plaintiff desired to pursue. He was not employed for a definite time or for a definite task. There were expectations expressed that a power station would be built. But the plans were not made, and if nothing more was said than appears in the evidence, it cannot be questioned that the defendant was at liberty to change his mind if he saw fit. Under such circumstances the defendant's insisting that the plaintiff's stipulated absence on his own affairs should take the form of a leave of absence without pay, even if contrary to the earlier understanding, cannot be held to warrant the plaintiff in ripping up the whole period of his service and treating what was done and paid for as reopened for assessment by a jury. There is nothing to show that the defendant might not have dismissed him altogether. Furthermore the plaintiff is met by the further difficulty that he did not treat the contract as wrongfully ended by the defendant's course. The moment for him to treat the contract as repudiated, if ever, was on November 1, when he knew the defendant's position and answered him. But the plaintiff went on and did further work. His testimony shows that it was done or purported to be done under the contract. If he ever had an election he exercised it then.

Exceptions overruled.