The rule of law is perfectly well settled that an action may be maintained to recover damages for the breach of an executory contract, before the expiration of the time when the stipulations of the respective parties, if there had been no breach, would have been fully performed. If one party is guilty of a clear infraction of the terms of an agreement, which virtually puts an end to it, the other party is not compelled to delay his remedy therefor, because a portion of the contract still remains executory. The breach by one party, by an absolute refusal to fulfil the contract on his part, renders performance by ■ihe other party impracticable, and the right to indemnity by an action for damages at once accrues. This is the established rule as applied to contracts founded on concurrent considerations, as where one agrees to do a certain thing, or perform some act, in consideration that another will fulfil some promise or undertaking on his part. Therefore, whenever a special agreement is entered into to do certain work, and the person for whom it is to be done refuses to perform, or renders himself incapable of performing, his part of the agreement, the other party may either sue for a breach of the agreement, or, if he so elects *33he may rescind the agreement and sue on a quantum meruit for the work actually done. De Bernardy v. Harding, 8 Exch. 822. Prickett v. Badger, 1 C. B. (N. S.) 296. Moulton v. Trask, 9 Met. 577. Canada v. Canada, 6 Cush. 15. 2 Greenl. Ev. §§ 103, 104.
Such being the rule of law, we can see no reason for holding that this action was prematurely brought. The first count in the declaration contains a good statement of an executory contract, a breach thereof by the defendant by an absolute refusal to perform it, a readiness by the plaintiff to fulfil and perform his part of the agreement, and a sufficient averment óf damages occasioned by such breach. The count is substantially according to the most approved form of declaring on an action for damages for a breach of an executory contract for labor and services; 1 Chit. Pl. 359; 2 lb. 325,332; except that it does not specifically allege the grounds or particulars of damage resulting from the breach. Such allegation is, however, unnecessary when special damages, not necessarily incidental to the breach alleged, are not claimed. Such damages as necessarily result tom a breach of contract need not be stated in the declaration. 1 Chit. Pl. 371. The evidence offered at the trial tended to support this count in the declaration, and would have well warranted a finding in favor of the plaintiff.
Nor can we see any good reason why the plaintiff could not have recovered on his count in indebitatus assumpsit, if he had elected so to do, on the ground before stated, that he had a right to consider the special contract rescinded by the acts of the defendant and to recover for the value of the services which he had actually rendered.
The real difficulty was not that the evidence did not support tne counts or that it proved that the action was prematurely brought. The error was that the plaintiff joined two inconsistent counts in his declaration, alleging that they were for the same cause of action. This was a good ground for a demurrer to the declaration, but was not a valid reason for defeating the action after it had gone to trial and competent evidence had been offered which well supported either count in the declara*34tian. At this stage of the cause, the proper course was to compel the plaintiff to elect on which count he would proceed and to order the other count to be stricken out, or to direct the jury to find a verdict upon one only of the two counts. But it was clearly erroneous to put the plaintiff wholly out of court in a case where he had offered evidence which would have well warranted a verdict on one of the counts.
Exceptions sustained.