Weymouth v. Beatham

Wiswell, J.

The declaration, in this action, is in the form of indebitatus assumpsit to recover for the labor of sixteen men furnished by the plaintiffs, in driving logs for the defendant out of one of the tributaries of the Piscataquis river.

From the plaintiffs’ evidence it appeared that an arrangement had been made between the plaintiffs and the defendant, — both of whom had drives of logs upon the river, — that if the plaintiffs’ logs should first arrive in the main river at the mouth of this tributary, they should furnish men to assist the defendant in driving his logs into the main river; that, this contingency happening, the plaintiffs, in pursuance of the arrangement, sent their men to work for the defendant upon his drive, but that the defendant did not accept their services, or set them to work; and that the plaintiffs’ men performed no labor whatever for the defendant.

Thereupon, tbe presiding justice ordered a nonsuit upon defendant’s motion, to which exception is taken by the plaintiffs. The ruling was clearly right. Assumpsit in the common counts to recover for labor can only be maintained when the labor has been performed and when nothing remains to be done by the defendant but the payment of the price in money. 1 Chitty on Pleadings, 860; Encyl. of Pleading and Practice, Yol. 2, page 1009 and note.

Where, as in this case, a plaintiff seeks damages for the breach of such a contract, which has not yet been performed upon his part, he must declare specially.

Exceptions overruled.