The opinion of the court was delivered by
Bennett, J.— It has not been denied, in the argument, that, as a general proposition, if the promissee is the occasion of the promissor’s not fulfilling his contract, no damages can be recovered by him for such non-performance. But in the present case, it is said, as there are two promissees of the contract, the discharge of one is not operative to preclude a right of action in the names of both of them. Is this so ? The plaintiffs have a joint interest in this contract, and either the one or the other have full power to control it. In the case of partners, and others, where there is a community of interest in a particular subject matter, not only the act or agreement of one, but his declarations in regard to that subject matter, are evidence against all. So a release, by one of the plaintiffs, of this contract must be a bar to an action, and this necessarily results from the unity of interest which both plaintiffs have in it. Both must join in an action upon it, and their interest being joint, the acts of one necessarily control the interest of both. It was then no more competent for Wm. H. Sutton, after the defendant had been dismissed by Harry, to require the defendant to go to work again under the contract, than it would have been for William himself to have done it, had he been the sole person in interest, and discharged him himself. When the defendant had been once discharged by being turned away, the plaintiffs had put an end to the contract on their part. This was the immediate result upon the defendant’s being discharged by one of the plaintiffs at St. George, and when the plaintiffs had put an end to the contract, they could not again, by their own act, and against the will of the defendant, restore themselves to their rights under it. In Lantry v. Parks, 8 Cow. R. 63, where the plaintiff had contracted to work for the defendant a given time, and shortly before the time had expired he, without good cause, abandoned the service of the defendant, saying he should work for him no longer, but shortly returned and offered again to go to work for him, but the defendant, without assigning any special cause, refused to set him to work, *83it was held that the plaintiff could not thereby restore himself to his rights under the contract, but had forfeited all right to recover any thing for the services performed.
The plaintiffs have no reason to complain of the charge of the county court in regard to the legal effect of the record given in evidence. The defendant in this case, having set forth, in his declaration in that action, the terms of the contract made with the present plaintiffs, and they having suffered the cause to be defaulted, it is, at least, to be regarded as an admission by them of the contract as set forth in the declaration.
Though, perhaps, there might be some difference of opinion, among the members of the court, as to the effect of the record, yet the plaintiffs cannot complain of ■ error, though the court should think the record conclusive between the parties. The judgment of the county court must therefore be affirmed.