The opinion of the court was delivered by
Royce, J.The plaintiff claims to recover for services rendered, by his minor son, for the defendant. The defence is, that the plaintiff hired his son to the defendant for the period of seven months, and that the son left the service without cause before that period had expired.
*271It appears, from the report of the auditors, that the hiring was in April, A. D. 1838, for seven months, at thirteen dollars per month; and that the plaintiffs son worked for the defendant under the contract until the 19th day of August, following, when he left the service against the defendant’s will, and without any sufficient or justifiable cause.
The first inquiry is, whether this was a contract for one entire period of seven months, or, in effect, a contract for each one of the seven months by itself or in succession. And that it should be taken in the former sense we think is evident, as well from the mode of estimating the wages, as from the words in which the contract is stated. The parties must have been aware that the labor would not be equally valuable to the defendant through the different portions of the seven months, and yet no difference was made in the rate of compensation. And, according to general usage in contracts of this character, the words here employed to express the length of service contracted for denote a single and entire period of time. Such is surely the more natural and obvious construction.
It is insisted, however, that the contract was at least divisible in point of compensation, so as to entitle the plaintiff to exact payment for the wages of each month by itself. But, from the want of any estimate of compensation intended to apply to each month, separately, and from the absence of any stipulation for part payment during the term of service, we are satisfied that this ground is not tenable. By the terms of this contract the defendant did not undertake to pay for one, two, or three months service, but for the whole seven months at a certain rate.
Assuming, then, that the contract was entire in both the particulars, above considered, we are brought to the important question, whether, upon the facts reported, the plaintiff has any legal remedy for the service performed ? An exec-tory contract may be rescinded by the consent of both parties ; or one party may have reserved the right to put an end to it at pleasure; or he may acquire such right, in the course of executing the contract, as the result of a previous violation of it by the other party. In all such cases, if the contract is dissolved, the party who has benefitted the other by part performance of it, is left at liberty to claim a recompense *272as if he had conferred the benefit without reference to the contracti
The agreement under consideration, has never been terminated by any of these means, but yet remains open and bihd-ing. Here, it should be remarked, that.the present is not a case of mutual independent promises; for the defendant’s undertaking to pay, was not given in consideration of the plaintiff’s undertaking to serve, but in consideration of the service itself. And in order to fix the defendant with a liability, it would become necessary, in declaring upon the contract, to allege a performance of the whole service, or a legal excuse for its non-performance. In other Words, the service contracted for would be regarded in the light of a condition precedent. It is clear, therefore, that the plaintiff could not succeed in any action expressly founded on the contracti
There is a class of cases, to which the present is sought to be likened, where works have been executed imperfectly, or varying from the contract, and the party has been allowed to seek a remedy for the benefit actually conferred, by proceeding on a quantum meruit aside from, and, in a measure, independently of, the special contracti Several of the cases cited in the argument, are of this description. In those cases, however, two ingredients are usually found which are wanting here, an honest effort and purpose upon the one side, and ac-quescence and acceptance on the other. They may generally be looked upon as cases of misfortune or mistake, where the party, designing to make a certain description of edifice or improvement, has failed fully to accomplish his purpose, but not through a wanton disregard of his contract. The present, in our opinion, is not a case within %e principle or policy of this rule.
We are accordingly brought to the conclusion that, since the plaintiff has voluntarily disabled himself to demand compensation under the terms of his contract, he is without legal remedy for the service rendered in part execution of it.
Judgment of county court reversed, and judgment for defendant.