In Hawkins v. Gilbert, 19 Ala. 57, it was said for the court by Dargan, C. J., that “When one party has entered into a special contract to do certain work, or perform a specified service, and the work is done, but not in conformity with the terms of the contract, yet, if it be accepted and was beneficial to the party for whom it was to be performed, the party performing the work or rendering the service, may recover on a quantum meruit, as much as the work of service-was reasonably worth, notwithstanding it be not performed according to the terms of the special contract.” Under the principle thus announced, if the contract is an entire one, the obligation of the party engaging the other to do the work or perform the service, to pay for the same, rests upon the fact that there has been no abandonment of the contract by the employe, and the employer, notwithstanding the work or service has not beeen performed according to the terms of the agreement therefor, has accepted the same and derived benefit therefrom. But, where there has been a failure to perform the contract, according to its terms, and the employer has not accepted the same, there can be no recovery against him for work and labor done.' — Bell v. Teague, 85 Ala. 211. In the case of Hawkins v. Gilbert, supra, the court added, after stating the first principle above quoted: “But we have seen no case that holds the law to be, that a party may abandon the work without cause or reason, before it is finished and recover on-a count for work and labor. Such a principle would enable a party to violate his contract with impunity, and still recover for the services rendered or labor performed.”
The general rule is, that where there is an express, contract, the plaintiff cannot resort to an implied one,, but must recover, if at all, on the express, agreement.. *509“An exception to the rule, however, is that he may recover on the common counts, although the evidence discloses a special agreement, when such agreement has been executed and fully performed, and no duty remains but the payment of the price in money by the defendant. But so long as the contract continues executory, the plaintiff must declare specially,” and prove performance.' — Jonas v. King, 81 Ala. 285; Burkham v. Spiers, 56 Ala. 547; Florence G., E. L. & P. Co. v. Hanby, 101 Ala. 15; Woodrow v. Hawving, 105 Ala. 240; Stafford v. Sibley, 106 Ala. 189; Anderson v. English, 121 Ala. 272; Darden v. James, 48 Ala. 33; Abercrombie v. Vandiver, 126 Ala. 513; 2 Smith Lead. Cases (8th ed.), 33.
Oases often arise, that an employer under an entire contract with his employe, is in a position, known to the parties in the beginning, Avhere he cannot escape accepting the Avork or services of the latter, as they are rendered, and his acceptance of AAdiat has been done is unavoidable, and to that extent not his choice, and his promise to pay therefor, from such acceptance can not be implied. The books abound Avith illustrations of this character.
In Wright v. Turner, 1 Stew. 29, the plaintiff proved that under a contract to serve the defendant three months at $10 a month, he had served him about one month and. eight days, and then,' against defendant’s consent, left his service; that when he did so, the latter offered to giAre him a due bill for his wages for the time he had served. The court said: “The contract Avas entire. As the plaintiff left the defendant’s service with■out his consent, he is not entitled to recover, even for the time he had served. The offer to give a due bill is to be considered as an offer on'the part of defendant to purchase his peace,” etc. Here, the defendant got the benefit of the sendee that had been rendered by his employe under the abandoned contract, accepted, unavoidably, as the Avork progressed, and with no ability to return it.
In Pettigrew v. Bishop, 3 Ala. 440, the plaintiff contracted AAdth the defendant as an overseer for twelve months, for the sum of $275, and 20 bushels of corn. *510He commenced about tbe 1st of- January, and continued near eleven months, and quit his employer’s service without his consent. The court said: “The contract of the defendant in error, m this.-case, was to serve the plaintiff in error as an overseer, for a fixed compensation, and to recover, it is necessary he should -show that he had performed the contract on his part, or that he has been prevented from doing so by the -act of the opposite party. The attempt here is to recover compensation for a part of the time, without showing any reason for his failure to perform the entire contract; to permit this to be done, would be to permit one of the parties to a contract to make a material alteration in its terms, without the consent of the other.” In this instance, the employer had, as in the case last referred to, accepted, because he could not do otherwise, the service of the plaintiff and the benefits arising therefrom, for eleven out of the twelve months of the year plaintiff was hired to labor.
Givhan v. Dailey’s Admr., 4 Ala. 346, was another case of an overseer, who, under a contract to serve for a year at a fixed compensation, died during the year. It was held that his personal representative could not recover a pro rata compensation for the period he served. This case, and others like it, led, presumably, to the adoption of section 33 of the Code, appearing as section 2159 of the Code of 1852, and carried into subsequent Codes, providing, that in such a case, the personal representative may recover a ratable compensation for services actually rendered, notwithstanding the entirety of the contract.
In the case before us, it is not denied that the contract was entire. It had no specified time to run, short of the completion -of the codification in Code form, of the laws of Alabama. Plaintiff by its terms agreed to perform such parts of the work as might be assigned to him by the defendant, “and to do all in his power to make the work of the Code .a success in every particular.” This was a provision for service, such as should be assigned him by -defendant, — the commissioner appointed to -codify -the laws, — until the entire work was *511completed. Plaintiff ivas to receive as compensation $75 per month, not -exceeding, if he worked longer, one thousand dollar's. The suit was instituted in the beginning, on the contract itself, alleging its breach by the defendant. The case was tried, with that one count alone in the complaint, the plaintiff relying entirely upon the contract and its breach by defendant for a recovery. After all the evidence was in, the defendant requested in writing the general charge; and as the bill of exceptions shows, “the court intimating' an intention to give -such charge, the plaintiff asked leave to amend his complaint, by adding common counts, numbered one and two respectively, count number one claiming $500 for work and labor done and materials furnished in the years 1895, 1898 and 1897; and count number two claiming the same sum for goods, wares and merchandise sold during said years.”
“The defendant objected to the allowance of said amendment, first, because it introduced a new cause of action into the complaint; second, because the amendment is a departure from the original complaint; third, because there was no evidence to support it; fourth, because the Avork was done under a special contract in writing; and, fifth, the causes of action attempted to be set up by said amendment arose, if at all, under a special contract in writing Avliicli had been introduced in eAddence, and plaintiff must recover, if at all, under said special contract. But the court OArerraled defendant’s objection to the allowance of said amendment and permitted it to be made and filed, and to this ruling of the court the defendant excepted.”
The plaintiff on his own examination as a witness, testified AAdiat work he had done in aid of defendant in his preparation of the. Code. The evidence shows he prepared the text of several subjects, as assigned to him by defendant, which were revieAved, and in certain particulars changed by defendant; that defendant assigned him a number of subjects to be annotated, including the-subject of Mandamus. He stated: “The practice was for Martin to assign me a piece of work at the time, when one piece Avas completed and returned, and another-*512would be assigned. I did all tbe work assigned to uie, except tbe annotations to tbe subject of Mandamus. The subject was assigned me to annotate sometime in June, 1897. I had a fire June 27th, 1897, which damaged my books so that I could not use them. My office was closed for a week or two for the loss from fire to be adjusted. Some time in August, 1897, I sent the manuscript text to Mr. Martin (by his son, I think) with the message that 1 could not do any more work.”
The evidence shows, that the Code went to press in .June, 1897, and was concluded in January, 1898. It further shows, on the part of defendant, if that were important, that plaintiff failed to perform the work .assigned him with diligence, and that on the part of plaintiff, that he did perform it well and diligently, and that it was worth more than $1,000. The defendant swore that plaintiff, after the return of the Mandamus manuscript, never applied to him, and he never sought him for other work, and stated, that at the time he sent the Mandamus back, “I was exceedingly busy with the Code work, and had other subjects for him to annotate. I was compelled to employ other persons to assist in making the annotations, at a cost of more than $500, at very reasonable rates of compensation.”
The plaintiff’s own evidence, as set out above, as well as that of the defendant, shows without conflict, that plaintiff, of his own accord, declined to render service to defendant under his said contract with him, and ■abandoned the same, in August, 1897, and thereafter did no other work thereunder, though said contract was and remains unexecuted by him. Under these conditions, he had no right to amend his complaint, against the objections of defendant, in the manner he was allowed to do. His only remedy, if any he had, was on his contract; and under the facts as disclosed by the evidence, if he had sued in the beginning alone upon his common counts, he could not have maintained the suit. Moreover, under the undisputed evidence, it is equally clear, he could not have recovered, suing on the contract alone. It is unnecessary to consider the other assignments of error.
*513The general charge as requested should have been given for defendant.
Reversed and remanded.