The plaintiff testified that the defendant took a job of him -to cut all the wood on a certain lot, for eighty cents a cord, payable in “one lump” or round sum when all cut and suiveyed by a sworn surveyor.
This special contract the plaintiff makes the foundation of an alleged implied promise, on the part of the defendant, to hold the plaintiff harmless from all lien claims or judgments on the wood for cutting it; and he brings this action, based upon that implied promise, to recover of the defendant the amount of six lien judgments in favor of the defendant’s choppers and against the defendant and the wood chopped by them, which judgments the plaintiff paid, and thereupon contends that he paid them for the use of the defendant.
If the plaintiff’s statement of the terms of the contract is correct and the defendant has performed a part of it only, and has *125refused, without legal excuse and against the plaintiff’s consent, to perform the rest of it, he could recover nothing either in general or special assumpsit. Hulle v. Heightman, 2 East, 145; Dermot v. Jones, 2 Wall. 1; Faxon v. Mansfield, 2 Mass. 147; Rice v. Dwight Manf. Co., 2 Cush. 80, 87; Otis v. Ford, 54 Maine, 104; Lakeman v. Pollard, 43 Maine, 463. If he could not sue then of course he could not put any lien upon the wood.
The defendant, however, strikes at the very foundation of the plaintiff’s action by testifying that the terms of the special contract were not, so far as the quantity of wood to be cut and the time of payment therefor are concerned, such as stated by the plaintiff; but, on the contrary, that he was not obliged to cut all the wood on the lot, but only so much thereof as he might choose; and that he was to receive eighty cents a cord for whatever he should in fact cut, and the survey and payment were to keep pace with the cutting toties quoties every two weeks.
If the defendant’s version of the special contract as to the times of survey and payment, is correct, and the plaintiff absolutely refused to perform his ■ part of it in this respect, thereupon the defendant would have the legal right to elect to rescind it and sue on a quantum meruit for the wood cut under it, prior to the rescisión. Withers v. Reynolds, 2 B. & Ad. 882; Planche v. Colburn, 8 Bingham, 14; Pritchett v. Badger, 1 C. B. (N. S.) 296; Dwinel v. Howard, 30 Maine, 258; Wright v. Haskell, 45 Maine, 489.
In Withers v. Reynolds, supra, the defendant agreed to deliver to the plaintiff three loads of straw a fortnight during a specified time, at thirty-three shillings a load on delivery. After the receipt of several loads the plaintiff refused to pay on delivery, contending that he was to pay when all was delivered. On the defendant’s refusing to deliver any more, the plaintiff sued him for breach of the contract, and Lord Tenterden, C. J., and his associates sustained a nonsuit, on the ground that the defendant was entitled to his pay on the delivery of each load, and that the plaintiff’s absolute refusal gave the defendant the right to rescind. Patterson, J., remarked that if the plaintiff “had merely failed to pay for any particular load, that of itself might not have been an *126excuse for delivering no more, but the plaintiff refused to pay for the loads as delivered.” That case was cited in Franklin v. Miller, 4 A. & E. 599, and in pronouncing his opinion, Coleridge, J., said: “In Withers v. Reynolds, each load of straw was to be paid for on delivery. When the plaintiff said that he would not pay for the loads on delivery, that was a total failure, and the defendant was no longer -bound to deliver. In such a casé it may be taken that the party refusing has abandoned the contract.”
Assuming that the law would raise an implied promise on the part of the defendant to hold the plaintiff harmless from all liens on the wood, provided the plaintiff’s understanding of the special contract is right, such a promise could not be implied unless the plaintiff fulfilled on his part by paying as he agreed. Otherwise the defendant might lose all remedy for his earnings. And if he refused absolutely to pay bi-weekly, if such were the contract, he would thereby put it in the power of the defendant to rescind the special contract; and when rescinded, the parties would be in the same condition as if no such contract had been made; whereupon all the choppers might secure their wages on the wood.
Furthermore, the defendant and his witnesses to the contract, judging from their names and the language of their testimony, are Frenchmen. And the minds of the parties, on account of the defendant’s imperfect knowledge of the English language, may not have met on the terms of the contract. If their testimony is true, they could not have understood the contract alike. If that should prove to be the fact, then there was no such contract ever entered into, and hence no implied promise on which to ground the plaintiff’s action.
Under either aspect of the case, therefore, our opinion is, it should have been submitted to a jury to settle the facts; and the order directing a verdict for the plaintiff was erroneous.
jExceptions sustained.
Peters, C. J., Walton, Daneorth, Emery and Haskell, JJ., concurred.