The opinion of the Court was delivered by
Gibson, C. J.There is but one exception to the rule which excludes the implication of a contract where there is an express one, and even' that is an anomaly. Expressum faoit cessare taciturn, is the maxim. Yet it is certainly established by the force of precedent, that where the plaintiff has performed a special agreement to do a particular thing, he may recover the stipulated price of it by an action of indebitatus assumpsit, and use the agreement as evidence of the amount of compensation due. So this court held the law to be in Kelly v. Foster, (2 Binn. 4) on the authority of Alcorn v. Westbrooke (1 Wils. 117), Brooke v. White (4 Bos. & Pul. 330), and of Mr Justice Buller (N.P. 139) who cites Gordon v. Martin (Fitzg. 302) and one or two unreported Nisi Prius cases. “ If the plaintiff,” says hé, “ prove a special agreement and the work done, but not pursuant to such agreement, he shall recover on the quantum meruit, for otherwise he would not be able to recover at ail: as if on a quantum meruit for work and labour, the plaintiff proved he had built a house for the defendant, though the defendant proved there was a special agreement about the building of it, viz., that it should be built in such a time and in such a manner, and that the plaintiff had not performed the agreement, yet the plaintiff would recover on the quantum meruit, though doubtless such proof on the part of the defendant might be proper to lessen the quantum of the damages.” It is settled, therefore, that the price of a service fully performed may be recovered in indebitatus assumpsit; and the reason seems to be that performance of a contract creates a moral duty to compensate it, which is independent of the obligation of the contract, and which is supposed to be a consideration to raise an independent promise by implication. Yet still the duty is only a moral one; and it has long been held that a moral obligation is an insufficient ground of action where a legal obligation' has not been added to it; for certainly, performance of a specialty contract, is not a consideration to raise such a promise; and if it be raised at all by the- naked obligation which springs from performance, it is difficult to see why it should not be raised as an independent promise, as well in the one case as in *305the other. But the difficulty in what Mr Justice Buller says, is to understand how want of due performance at the time and in the manner stipulated, shall entitle the plaintiff to recover in proportion to the service rendered. Where every part of the work has been actually but badly done, the law allows him to do so perhaps because indebitatus assumpsit is an equitable action ; and as time is usually not of the essence of a contract, want of punctuality in performance, as well as imperfection in the manner of it, admits of compensation. There certainly is a difference between defective and deficient performance, or, to use another word, no performance at all; and therefore it is that a tailor, who has cloth delivered to him for a coat, would not be allowed the price of his work, were he to make a different garment of it, though of equal value. But Justice Buller admits, that to make performance the consideration of an implied promise, the work must be done ; and with that agrees Algeo v. Algeo (10 Serg. & Rawle 235) in which the plaintiff was not allowed to recover in indebitatus assumpsit for performance of part of his agreement, though the defendant had prevented him from performing the rest of it. It was held that though prevention is equivalent to performance in an action on the contract, it is, nevertheless, not performance itself; and that, as the law implies a promise of compensation from nothing less, the proper remedy was an action on the special agreement, with an averment of the plaintiff’s tender of performance, or readiness to perform, as an excuse for the want of actual performance.
But the present is not so much a question of pleading as of title. Can the plaintiff recover in any form of action 1 He can recover, if at all, only in an action founded in contract; but what contract ? There certainly was no aggregatio mentium, or mutual consent, which is of the essence of a contract, that the one might do, and the other should pay for, less than the whole which was contracted to be done. If, then, it will not be pretended that he could recover on the express contract, unless he had performed or was ready to perform every part of it, can it be pretended that the law will imply from part performance a promise for part compensation in the teeth of the fact ? There is no reported instance of such an implication; and'the law is too politic and just, as well as too regardful of the inducements to good faith, to sanction it. The terms of a contract are private laws, which the parties to it prescribe for themselves, to fix the measure of their duties and responsibilities; and they agree to be bound by them and no others. But a judge would bind them differently, did he enforce between them duties of imperfect obligation, and support an implication of terms to which they did not accede. It is the boast of a freeman that he is to be bound only by his own consent; and if there is a power to bind him beyond it, whether exercised by an arbitrator, a judge, a jury, or a populace, it is a despotic *306one. Such is the power that would force a man to reward an unsought service, on the ground of natural justice; but it has long been settled that natural justice alone, or, as it has been more accurately called, moral obligation from benefit conferred, is not a foundation for the erection of a legal promise. It is difficult, however, to imagine the existence of a moral obligation to compensate the labour of a man who has deliberately cut himself loose from ,a part of his bargain, and that too the hardest part of it. On what principle of law or justice such a man is entitled to be paid for performance of the part of the bargain most beneficial to him, and paid at the contract rate of performance of the whole, I am unable to discover. If the work done was under his bargain, let his claim to compensation for it be determined by the terms of his bargain; if it was not, then it was done under no contract whatever, and it is no more than a service done without request. In M’Dowell v. Ingersoll (5 Serg. & Rawle 101) a surveyor, who had laid a number of company warrants together, without running and marking the intermediate lines, was not allowed to recover on a quantum, meruit; and in a previous discussion, when the cause was before the court as Woods v. Ingersoll (1 Binn. 151) Mr Justice Brackenridge remarked that he could form no idea of a quantum meruit for half services. In that case, the services prescribed by the law had tacitly entered into the contract of hiring as part of its terms; and it is in principle the case before us. The judge therefore erred in the first place, in treating the form of the action as immaterial; for there is no more reason why the plaintiff should not declare on a special contract, when the cause has come into court by appeal, than there is when it has come- in by writ: and he also erred in directing that, damages for want of entire performance being deducted from the plaintiff’s claim, he might recover the residue of it. There was, however, no error in admitting the special agreement in evidence that could prejudice the defendants, for it was the foundation of their defence.
Judgment reversed, and a venire facias de novo awarded.