§§ 662, 663. RECOVERY BY AN INFANT. 333 work for another a certain time, he can maintain an action for his compensation without making up time he has reasonably lost during the period, and the time so lost will be deducted.(*) § 662. Measure of recovery. But the party in default must not gain by his default, nor the other lose by it. Parties often agree to give excessive prices to have an entire contract literally performed, when a partial performance would never have been contracted for. And though the contract price, as far as practicable and equitable, furnishes the measure of damages on such a quantum meruit, and the defaulting party can in no case recover more, yet he can have his quantum meruit only, and is not entitled to the contract price for what is worth less.(*) The mode of ascertaining the real benefit received from the part performance of work, in such case, is to estimate the whole work at the price fixed by the contract, and to deduct from that the amount requisite to complete the part of the work left unfinished. If any loss is occasioned by the unfinished part costing more in proportion than the whole was undertaken for, the loss must be borne by the party who originally contracted to do the whole. The amount to be allowed may in some cases be less than the proportion which the work done would bear to the cost of the whole, but cannot exceed it.(©) § 663. Recovery by an infant.-In Vermont it has been held, in accordance with the rule in that State, that when an infant makes a contract with an adult to serve for a given time, and leaves before he has performed the whole (*) McDonald v. Montague, 30 Vt. 357. (*) Clement v. State Reform School, 84 Ill. 311; Allen v. McKibbin, 5 Mich. 449. (") McKinney v. Springer, 3 Ind. 59. of the service, he is entitled to recover what his services are reasonably worth, taking into consideration the injury to the other.(^) But in Maine it has been held that a minor who has agreed to work for a certain time, and not to leave without giving notice a certain time beforehand, but does not complete the agreed term, and does not give the notice, is not liable to have the damages thereby occasioned deducted from the amount he would otherwise recover, the minor not being bound by his contract. (*) (*) Hoxie v. Lincoln, 25 Vt. 206; acc. Moses v. Stevens, 2 Pick. 332; Gaffney v. Hayden, 110 Mass. 137; Hagerty v. Nashua Lock Co., 62 N. H. 576. () Derocher v. Continental Mills, 58 Me. 217. CHAPTER XXI. THE MEASURE OF DAMAGES IN ACTIONS ON CONTRACTS OF SERVICE. § 664. Compensation for services per- | § 669. Discharge of an attorney. formed. 670. Compensation payable on a contingency. 671. Compensation by a commission. 672. Compensation by percentage of an amount that can be fixed. 673. Commissions on insurance renewals. 674. Commission from both parties. 675. Consequential damages. § 664. Compensation for services performed. We now turn to the claims of agents against their principals; or of servants against their masters, for the contracts of agency and of service are nearly allied. We have already (*) considered the question how far the principal is liable to pay his servant or other agent, who is engaged for a specific time, and without sufficient reason quits the employment. If, however, the agent or servant fully performs his contract, but the contract allows him no definite compensation, he is allowed to recover on a quantum meruit the value of the services performed, (b) without regard to the amount of benefit which the princi (*) § 658. () Lockwood v. Onion, 56 Ill. 506; Stowe v. Buttrick, 125 Mass. 449: Erben v. Lorillard, 2 Keyes, 567. The rule is the same where the contract is terminated by mutual consent before it is fully performed: Ratcliff v. Baird, 14 Tex. 43. pal or master received from them.(") Similarly, if a minor enter the service of the defendant without permission of his father, the father may recover the reasonable value of his services, less the amount of compensation which the minor has received. () If the contract fixes the compensation, that amount is the sole measure of damages.(*) In a case in Minnesota, where by the contract the defendant was to fix the amount of compensation, the court refused to give more than the amount fixed by the defendant. (4) But in Illinois such a contract was held to be equivalent to a contract to pay a reasonable compensation, and the plaintiff was allowed to recover on a quantum meruit.) And in the same State, when a plaintiff had presented a bill, it was held error to allow him to recover more than the amount of the bill.(') Where the plaintiff began to perform the services under an express contract, and continued after the term named in the contract, he was held entitled to compensation at the contract rate. (*) The plaintiff assumed, without authority, to act as agent for the defendant, and his acts were ratified by the defendant; he became entitled to the same compensation as if he had originally acted with authority.() Where an attorney was engaged in Iowa to perform services in another State, it was held that his compensation should be at the rate paid in Iowa rather than at that paid in the other State. (*) (*) Stowe v. Buttrick, 125 Mass. 449; Bagley v. Bates, Wright (Oh.) 705 () Sherlock v. Kimmell, 75 Mo. 77; Huntoon v. Hazelton, 20 N. H. 388. (c) Ludlow v. Dole, 62 N. Y. 617. (d) Butler v. Winona M. Co., 28 Minn. 205. () Van Arman v. Byington, 38 Ill. 443. () Daniels v. Wilber, 60 Ill. 526. (*) Huntingdon v. Claffin, 38 N. Y. 182; Ranck v. Albright, 36 Pa. 367. (b) Wilson v. Dame, 58 N. H. 392. (*) Stanberry v. Dickerson, 35 Ia. 493. § 665. DAMAGES FOR WRONGFUL DISCHARGE. 337 §665. Damages for wrongful discharge. -The question often arises to what extent the principal is liable when he discharges the agent without legal excuse. * In an English case' the plaintiff was employed as clerk, to do the business of shipping agent at Southampton, under a contract of hiring for two years, at £150 for the first year, 160 for the second year, and also 50 per cent. on the gross profits. The defendant, alleging disobedience. of orders and misappropriation of money, discharged him. The jury found these issues against the defendant, and gave the plaintiff a verdict of twelve months' salary and twelve months' share of profits. One year's salary, within a trifling sum, appears to have been paid. A motion was made to set aside the verdict on the ground that the damages were excessive, but it was denied. Wilde, C. J., said: "With respect to the amount of damages, it was for the jury to say what amount of compensation the plaintiff was entitled to for the defendant's breach of contract." And Maule, J., said: "There is no ground for saying that the damages were miscomputed. It must be borne in mind that embezzlement was imputed to the plaintiff." The result at which the verdict arrived seems not open to observation. But the language of the court appears by no means equally free from objection. Why, in a case of this kind of simple contract, is it for the jury to fix without control the defendant's liability? and what has a charge of embezzlement, set up in the plea, to do with the quantum of damages? If in a case of this description there is no rule of damages, it would seem to be difficult to declare one in any; and if an unfounded defense is to have the effect of turning an action of contract into one of tort, and to give the uncontrolled discretion of the subject to the jury, the principles which 1 Smith v. Thompson, 8 C. B. 44. VOL. II.-22 |