Election. Contract, Performance and breach, Rescission. In an action to recover $120 as the price or compensation for a series of six pencil drawings to be used as illustrations in a book to be published by the defendant, it appeared that there was an entire contract for the six drawings for the round price named, that when the plaintiff had completed five drawings and had done a part of the sixth, he showed them to the defendant who expressed dissatisfaction and said "that he would not accept the drawings as they were," that the plaintiff proceeded to finish the sixth drawing and then brought an action, previous to the present one, for the contract price, that in that action a judge, who heard the case without a jury, found for the defendant and a general judgment for the defendant was entered, that thereafter the plaintiff brought the present action in which he sought to recover damages on the ground that the defendant had repudiated the contract by ordering the plaintiff to cease work before the sixth drawing was completed and that this gave the plaintiff the right to rescind the contract and recover on a quantum meruit the value of his services. Held, that the plaintiff by bringing his first action had made a conclusive election of remedy by affirming the contract and suing on it for the contract price, and that, having failed to prove performance, it was too late for him to take the ground that complete performance on his part was not necessary because the defendant's repudiation of the contract had given the plaintiff the right to rescind it and recover for the value of his services. Whether on other pleadings the plaintiff could have recovered damages for the defendant's alleged repudiation of the contract was not considered.
BRALEY, J.
The case at bar is the second action between the parties, to ascertain their rights under a contract, whereby the plaintiff undertook to prepare and furnish for a round sum a set of six drawings or illustrations to embellish a church history which the defendant intended to republish. It was uncontroverted at the trial, where the plaintiff was the only witness, that when five of the six drawings had been finished and the sixth partially completed, the defendant having expressed dissatisfaction with the character of the work, said "that he would not accept the drawings as they were." A dispute followed as to whether the completed drawings in workmanship and details complied with the contract, but the plaintiff, who then presented a bill at the rate of $20 for each drawing, does not appear to have pressed the claim. The refusal of the defendant is alleged in the declaration in the present case to have been an order "to cease work thereon," or a repudiation of the contract, which justified rescission by the plaintiff. It would seem to be plain, that the contract was to do specific work for an entire sum, and could not be split into six parts without the defendant's consent, who was under no obligation to accept five drawings and pay for them, even if they corresponded with previous drawings of the plaintiff which the evidence shows the parties selected as the standard of workmanship. Fullam v. Wright Colton Wire Cloth Co. 196 Mass. 474. Badger v. Titcomb, 15 Pick. 409, 413. Gibson v. Cooke, 20 Pick. 15.
The performance of the work was a condition precedent to payment, and unless the defendant acted in bad faith, and intended to take the position that, even if the set were completed as required by the contract, he would not accept, the plaintiff could not rescind. Daley v. People's Building, Loan Saving Association, 178 Mass. 13, 18. The plaintiff, moreover, apparently did not so interpret the defendant's language or consider that he had been prevented from performance, or treat the contract as ended, for he went on and finished the sixth drawing, when he tendered the full set with a bill for the contract price, which the defendant refused, because, as he then said, "he did not consider the drawings of such a character that he ought to accept them." It seems from the instructions to have been assumed at the trial that the defendant's conduct was equivocal and that the jury could find that the plaintiff was justified in treating the contract as repudiated by the defendant at some stage of performance, and that, if they so found, the plaintiff having rescinded, could recover. See Barrie v. Quinby, 206 Mass. 259.
But whichever position the plaintiff took, he cannot maintain his present action as to the principal controversy. If the agreement had been fully performed on the plaintiff's part, the defendant owed the contract price, which could be recovered under a count upon an account annexed, or the plaintiff might declare on the special contract, averring his performance and that the compensation agreed upon was payable, or, if the defendant ordered him to cease work and he elected to rescind, then he might sue for the value of his labor and materials. Knight v. New England Worsted Co. 2 Cush. 271, 289. Harrington v. Baker, 15 Gray, 538. Mullaly v. Austin, 97 Mass. 30. Fish v. Gates, 133 Mass. 441. Bowen v. Kimbell, 203 Mass. 364.
It is contended by the plaintiff that in the first action he rested his right of recovery solely on the ground that having fully performed he was entitled to the contract price. If, without deciding, it is assumed that the plaintiff's view of the pleadings is correct, the judgment for the defendant which followed after a trial on the merits must be treated as having conclusively settled that as between the parties and their privies the plaintiff failed to prove full performance on his part. In the present action the plaintiff treats the special contract as ended or rescinded, and although the language of the second count is not entirely clear, no question of a breach independently of a repudiation by the defendant is before us. It is therefore an action for labor performed for the defendant based upon a disaffirmance of the contract. But the plaintiff could not take successive and mutually repugnant positions by affirming the contract in one action, and, upon his failure, then disaffirm or repudiate it, and pursue the defendant in a second action for the value of his labor. His choice seems to have been deliberate, and uninfluenced by either accident or mistake. By suing on the contract he elected to affirm it, and the defendant's first, second, fourth and fifth requests should have been given. Peters v. Ballistier, 3 Pick. 495. Butler v. Hildreth, 5 Met. 49. LeBreton v. Peirce, 2 Allen, 8. Goodrich v. Yale, 97 Mass. 15. Lilley v. Adams, 108 Mass. 50, 52. Frisch v. Wells, 200 Mass. 429. Shoninger v. Peabody, 57 Conn. 42. Weil v. Guerin, 42 Ohio St. 299, 304. Cole v. Hines, 81 Md. 476. Daniels v. Tearney, 102 U.S. 415. Davis v. Wakelee, 156 U.S. 680, 691.
The second item of the third count, of which the third item was waived at the trial, is for services apparently independent of the plaintiff's performance of the contract. It was understood when the price was fixed, that the defendant should furnish the photographs from which the drawings were to be produced, but, after conference, the defendant having decided that new photographs should be prepared, they were taken by the plaintiff under weather conditions described by him as involving much personal inconvenience and discomfort. If the jury found that this work was done at the defendant's request, they would be warranted in giving reasonable compensation, but there being no evidence that the plaintiff was ever employed, or his advice sought as an expert, except so far as involved in the proposed execution of the drawings, there can be no recovery under the first item of the third count. The defendant's third, eighth and tenth requests were properly denied. But for reasons stated the exceptions must be sustained, and it is unnecessary to consider the remaining exceptions relating to the effect of the former judgment or to the ruling restricting the scope of the argument to the jury of the defendant's counsel, or to the instructions, as the questions will not arise at the new trial, which under the present pleadings is to be confined to the second item of the third count. Whether upon proper pleadings the plaintiff can recover damages for a breach of the contract, we do not decide.
So ordered.