This is an action of assumpsit, on an implied promise, to recover compensation for repairs and alterations made in a road in the defendant town. These repairs and alterations were made under a special contract, and it is admitted that the work was not completed within the time limited by the contract. We are, nevertheless, of opinion that the plaintiffs are entitled to recover on an implied promise, if the evidence reported was rightly admitted, and if the instructions to the jury were correct. The evidence offered • by the plaintiffs had a tendency to prove that the work was done in good faith, and, as the plaintiffs supposed, agreeably to the contract, except as to the time of its completion, and that the defendants had waived the plaintiffs’ compliance with their contract in this respect. That this was competent evidence *49according to the doctrine laid down in Hayward v. Leonard, 7 Pick. 181, cannot be doubted. And we are satisfied that the doctrine there laid down is correct; and that, in the present case, there was no misdirection to the jury. It is true that there are conflicting authorities on the question; but we adhere to the decision in Hayward v. Leonard, which is conformable to manifest justice, and is supported by tha modern authorities.
In Farnsworth v. Garrard, 1 Campb. 39, Lord Ellenborough lays down the rule thus, after a consultation with the other judges: “ I now consider this as the correct rule ; that if there has been no beneficial service, there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff’s demand, leaving the defendant to his action for negligence. The claim shall be coextensive with the benefit.” In Chapel v. Hickes, 2 Crompt. & Mees. 214, Bayley, B. says, “ the rule is, that if the contract be not faithfully performed, the plaintiff shall be entitled only to recover the value of the work and materials supplied.” The same rule is laid down by Parke, J. in Thornton v. Place, 1 M. & Rob. 219. And in Read v. Rann, 10 Barn. & Cres. 441, the same learned judge says, “ in some cases, a special contract, not executed, may give rise to a claim in the nature of a quantum meruit, ex gr. where a special contract has been made for goods, and goods sent, not according to the contract, are retained by the party, there a claim for the value on a quantum valebant may be supported; but then, from the circumstances, a new contract may be implied.” The same rule is laid down by Starkie, in cases where a complete return and rescinding of the contract are impracticable from the nature of the case. He says, it seems now to be settled, that if the work has been defectively performed, the plaintiff cannot recover but on a quantum meruit for the labor, and quantum valebant for the materials, to the amount of the benefit actually derived. 3 Stark. Ev. 1768. These and other cases and authorities are cited and discussed in a note in 2 Smith’s Leading Cases, 14, *50where the rule is thus laid down, as applicable to cases in which something has been done under a special contract, but not in strict accordance with the terms of the contract: “ In such a case, the party cannot recover the remuneration stipulated for in the contract, because he has not done that which was to be the consideration for it. Still, if the other party have derived any benefit from his labor, it would be unjust to' allow him to retain that without paying any thing. The law therefore implies a promise on his part to pay such a : emuneration as the benefit conferred upon him is reasonably worth; and to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable.”
This rule is applicable to those cases in which the labor has been performed in good faith, and not to those where the party has intentionally, and without necessity or sufficient reason, failed to comply with the stipulations of his contract. The rule, thus limited in its application, is, we think, correct in principle, and is supported by the modern authorities, whatever doubts may have existed in earlier times. And it fully sustains the rulings of the court, and the instructions to the jury, in the present case.
The evidence had a tendency to prove that the labor was performed by the plaintiffs in good faith, and that the defendants cannot, in good faith, object to the non-performance within the time stipulated by the contract. When they had notice that the plaintiff was working on the road after, that time, they were in good faith bound to give notice of their objection; and having failed so to do, they must be presumed to have waived it. The question of fact, however, was rightly left to the jury, and the instruction to them was correct.
Exceptions overruled.