Dissenting.
I do not propose to go into any extended discussion of the principles upon which this case was decided in the court below, or in opposition to the ground upon which that judgment is now reversed. I can very well perceive the strong grounds of equity upon which the decision now rests. But I confess my inability to reconcile it with the uniform and long standing numerous decisions upon the subject. If the law upon any one subject had been put at rest, and that beyond all possible cavil, I supposed it was in regard to contracts for service, where the entire term was to be performed, before payment of any part of the price; I consider that in the present case, by the express terms of the contract, full performance on the part of the plaintiff was made a condition precedent to any right of action against the defendant. If so, it is in vain to say that the plaintiff was hindered from performing the service by the act of God. That is never any excuse for the nonfulfilment of a condition precedent. Cutter v. Powell, 6 T. R. 320. That such was the expectation of the parties in the present case, I have very little doubt, from' the very peculiar phraseology of the contract. The auditor finds that it was expressly stipulated between the parties, that the defendant should receive no pay until after the four months’ labor was performed. In the case last cited, it is said by the court, that “ nothing ,can be more clearly established, than that where there is an express contract between *567the parties, they cannot resort to an implied contract.” It is true, no doubt, in the present case, that the plaintiff did not anticipate being hindered from the performance of his contract by sickness. But knowing that such might be the case, it was his own folly not to provide against such a contingency. As there was nothing in the present case requiring the labor to be, necessarily, continuous, if sickness were to be allowed as an excuse, it ought, at most, only to excuse the plaintiff from labor while it continued. He should, as soon as he was able, have been required to fulfil his contract, but this he neglected to do. Instead of so doing, he went and worked for Crosby without offering to resume labor for the defendant. Under these circumstances, I see no more reason to allow the plaintiff to recover for part performance, than exists in almost all cases of this character, where, from some accident, the situation of affairs becomes changed, and it is inconvenient for the party to perform his contract. If a condition precedent is to be got rid of thus readily, they are not made of such “ stern stuff” as we have been taught to consider them.
But if this could be considered as the ordinary case of a contract of service for a given term, to be paid a stipulated price at the end of the term, still it has always been held, that the law implied, on the part of the laborer, an obligation to perform the entire term, previously to his acquiring any right to claim pay ; and that -he could claim nothing for part performance, unless it was so expressly stipulated in the contract. In accordance with this are the decisions following. S. B. Company v. Wilkins, 8 Vt. R. 54. Smith v. Wilson, 8 East’s R. 473. Gibbon v. Mendez, 2 B. & A. 17. Faxon v. Mansfield, 2 Mass. R. 147. In the case of Morgan v. Carter, 4 Car. & Payne’s R. 295, i't is laid down as settled law, by Ch. J. Tindall, that the act of God is no excuse for the nonperformance of conditions precedent. It is Said arguendo, in the case of Cutter v. Powell, by Lawrence, Justice, that there is an implied understanding in relation to eommon “hired servants, that they shall be entitled to then-pay, notwithstanding they do not serve the entire term. I *568do not find any case, in which this suggestion has been followed, nor do I believe that any such implied understanding exists in this country, even, in regard to domestic servants, much less in the case of men hired for the farming season, where the loss of a single month’s labor might cost the loss of the products of the entire season. So far as any such understanding exists, it is conceded that it must control the import of the terms used in this contract. Upon authority, then, and that it is better to follow established principles, although they may seem to operate severely in particular cases, and that the contract of the parties, when explicit, is paramount to every other consideration, I think the judgment, in this case, should be for the defendant.