A severable contract is one the consideration of which is, by its terms, susceptible of apportionment on either side, so as to correspond to the unascertained consideration on the other side ; whilst an entire contract is one the consideration of which is entire on both sides, requiring the complete fulfilment of the promise by either ■ as a con* dition precedent to the fulfilment of any part of tfie promise by the other. — Story on Cont., §§ 21, 22, (3d ed.)
In the case before us, the contract was manifestly entire, and Oates could not have recovered upon it without averring and proving a performance. If he violated the contract in a matez’ial part, the employer had the right to discharge him, and this would work the same result as if he had abandoned the work voluntarily before completion.
This principle the charge concedes to be correct; but the qualification asserts the further proposition, that if the employer went on and used the work done by the plaintiff, and it was of any value to him, the plaintiff had the right to recover that value.
We have often held, that the charge must be construed with reference to the proof on which it is based. Here the proof shows that the appellant told his workman, after he had discovered the violation of the contract, and before he had quit his employment, “ Make out your bill, and I will settle with you for the work yon have done, or pay you two dollars per day for the time you have worked, to get rid of you.” The bill was accordingly made out, and tendered for payment, and the workman thereupon quit the appellant’s service. We think it is too clear to admit of doubt, that this amounted to a waiver of the terms of the original contract by both parties ; — by the appellant, because his proposal is inconsistent with its terms, contemplating a different mode of compensation for the work done, and a cessation of the service ; and by the appellee, who accepts the proposal, and quits the service, having complied with that which was proposed for his performance, in making out his account. This was a waiver, by mutual consent, of the terms of the special contract.— Judge Story says : “ If the work has, with the express assent, or the acquiescence, of the employer, been left incomplete, or the latter has knowingly dispensed with a perfect and skillful *468performance of it, a full compensation for it may be recovered upon a quantum meruit.” — Story on Bail., § 441 e, (5th ed.,) p. 461. Keeping in view this proof, as the predicate of the charge, and the law as applicable to it, we think the court very properly instructed the jury, “ that if the defendant went on and used the work done by the plaintiff, and it was of any value to him, the plaintiff had the right to recover that value.”
We have held that the acceptance and use of the work, although not done according to the terms of the special contract, entitles the workman to recover. — Merriwether, adm’r, v. Taylor, 15 Ala. 735; see, also, Hawkins v. Gilbert & Maddox, 19 Ala. 54. Whether this principle applies to improvements of a permanent, immovable character, erected on the land of another — whether, in other words, if the employer is either compelled to use the work as it is, or else to abandon his land on which it has been erected, any inference could be drawn from such use that he had dispensed with the original contract, or had acquiesced in the departure from it, is a question which the facts of this case do not call on us to decide. We may concede that the acceptance and use of the work, without more, would not justify such a presumption.— At the same time the charge is correct, because, referring it to the testimony, we find the use was preceded by an .express promise to pay for the work. It cannot be doubted, we think, that under such a state of facts, the workman is entitled to recover so much as the work is reasonably worth to the employer. — Story on Bail., §441b.
That the charge must be referred to the proof, see Jones v. Davies, 2 Ala. 730; 12 ib. 604; Lockwood v. Nelson, 16 ib.; and that the court may charge upon the facts without hypothesis, when there is no conflict in the proof, and they are not disputed, is also well settled. — 13 Ala. Rep. 713; 15 ib. 276. Furthermore, when the court assumes a fact as proved, we must intend that the evidence justified such assumption, unless there is something in the bill of exceptions to repel' it. To hold otherwise, would be to presume the court committed an error, which cannot be ‘presumed, but must be affirmatively shown. If the plaintiff in error desires to show that the court has invaded the province of the jury, by assuming facts *469as proved, he should show by his bill of exceptions that the testimony was conflicting or left the fact in doubt. The statement that the evidence tended to show a fact, without showing that the fact was disputed, -or that there was a conflict in the evidence, is not sufficient to put the court in error. There may be facts of such a character as not to be susceptible of direct proof ; and to such the rule would not extend; the question, for example, whether a party was actuated by a fraudulent intent in making a transfer, &c. — Kastillo & Keho v. Thompson, 9 Ala. 937. But such is not the character of the fact here assumed. Conceding then the promise of payment to have been made as stated in the bill of exceptions, we are of opinion, that the court very properly told the jury that, if they found the employer used the work, and it was of value to him, he should be held responsible for such reasonable value.
Let the judgment be affirmed.