The court having found as a fact that the minds of the parties did not meet respecting a material and necessary element of the supposed contract, there was no contract. "There can be no contract without mutual assent. This is vital to its existence. There can be none where it is wanting. Where there is a misunderstanding as to anything material, the requisite mutuality of assent as to such thing is wanting; consequently the supposed contract does not exist, and neither party is bound. In the view of the law in such case, there has been only a negotiation resulting in a failure to agree. What has occurred is as if it were not, and the rights of the parties are to be determined accordingly." Utley v. Donaldson, 94 U.S. 29; National Bank v. Hall, 101 U.S. 43; Delano v. Goodwin, 48 N.H. 203, 206; Cook v. Bennett, 51 N.H. 85, 93; Clark v. Sanborn, 68 N.H. 411; Concord Coal Co. v. Ferrin, *Page 179 ante, p. 33; Hartford etc. R. R. v. Jackson, 24 Conn. 514; 1 Par. Cont. (4th ed.) 399b; 7 Am. Eng. Enc. Law (2d ed.) 113.
But it does not follow that the plaintiff was without remedy for services performed under the supposed contract. He was entitled to recover of the defendants what his labor and services were reasonably worth, deducting what he had received. This was the view entertained in Collins v. Stove Co,63 Conn. 1356, where the court said: "If there was an honest mistake by the parties as to what the contract really was, the plaintiff understanding it as claimed by him, and the defendant understanding it as claimed by its counsel, there was then no meeting of the minds of the parties, and hence no contract; and in such case the plaintiff would be entitled to recover of the defendant, for the work done by him land such materials as he furnished in the work at its request, such a sum as they would be reasonably worth."
In Van Deusen v. Blum, 13 Pick. 229, — 29 Am. Dec. 582, the result was announced as follows: "The plaintiffs undertook to execute a contract between themselves and the company. But there being no such contract in existence, they are left to resort to their equitable claim for their labor and materials. So far as these benefited the company, the plaintiffs are entitled to recover against them." See, also, Norris v. School District,12 Me. 293, — 28 Am. Dec. 182; Turner v. Webster, 24 Kan. 38, — 36 Am. Rep. 251.
The principle is well stated by Brewer, J., in the case last cited: "Webster never assented to a contract to work for $1.50 a day. He agreed to do a certain work, and did it, but his understanding was that he was to receive $3 per day. Turner Otis employed him to do that work, and knew that he did it; but their understanding was that they were to pay but $1.50 a day. . . . What, then, should result? Should he receive nothing because there was no mutual assent to the compensation? That were manifest injustice. Should his understanding bind both parties? That were a wrong to them. Should theirs control? That were an equal wrong to him. The law, discarding both, says a reasonable compensation must be paid."
The same principle underlies the decisions in this jurisdiction. Britton v. Turner, 6 N.H. 481; Clark v. Manchester, 51 N.H. 594; Carroll v. Giddings, 58 N.H. 333. The principle seems as sound in reason as it is well supported by authority. The action of the superior court, to which the defendants excepted, was in accordance with this principle.
Exception overruled.
All concurred. *Page 180