The opinion of the court was delivered by
Davis, J.The contract between these parties was an entire one, and if the plaintiff, without sufficient cause, abandoned the service of the defendant, by the well settled law of this state he could recover nothing for a partial performance on his part. The agreement allowing either party to put an end to the contract, before the expiration of the six months, does not take this case out of the common principle, inasmuch as the assertion of this right required the existence and statement to the opposite party of some cause of dissatisfaction, with a view to its removal if practicable.
After laboring about one third of the period he had stipulated for, the plaintiff left the service of the defendant, ostensibly on the ground of ill health. This, if true, would, I think, constitute a sufficient reason for putting an end to the contract, according to its express terms. . It would not, of course, be in the power of the defendant to remove it. But, besides this, the fact alone, in the absence of any agreement on the subject, takes the case out of the ordinary rule, and allows a recovery on a quantum meruit for the labor really performed. Fenton v. Clark, 11 Vt. 557. The auditor finds, not only that the plaintiff was out of health on the 12th of June, when he left, but that he continued so for more than a month afterwards; not indeed so much so, as to incapacitate him wholly to labor; but so that he could not do a man’s work. The circumstances are very similar to those, which, in the case above cited, were held to absolve the plaintiff from the strict performance of his contract. In two particulars this case may be favorably distinguished from that, — in the absence of any stipulation, that the plaintiff was to be entitled to no pay, unless he wrought the full period of time agreed upon; and in the presence of the stipulation *623respecting the right to put an end to the contract, already adverted to.
We think, on another ground, the plaintiff is entitled to judgment on the report. The subsequent tender by the defendant of two pieces of cloth, the precise value of which is not stated, but which could not have varied much from one third part of the sum the auditor finds due to the plaintiff, that being the proportion payable in cloth, together with the avowed willingness to pay the remainder in money, can be regarded in no other light, than as a distinct waiver of any claim to a forfeiture on account of any supposed non-performance on the part of the plaintiff, or even to a deduction from a pro rata compensation on account of special damage. The sum found due was graduated by the contract the parties had entered into, except that a small deduction was made on account of labor for the first two months being of somewhat less value than the average of the whole period. No deduction was made for damages resulting to the defendant on account of the non-fulfilment of the contract by the plaintiff; and if the views I have' expressed in relation to the excuse the plaintiff had for such failure are correct, none ought to be made. The plaintiff is of course not bound to make good, damages resulting from an event no way under his control
It is urged, tiiat it was the duty of Seaver, when his health was restored, to return and offer to complete the period of service he had engaged for, and especially it is urged, that his declaration about not returning showed a determination in the outset to break the contract, before his illness ha.d continued any length of time, rather than a resolution unwillingly forced upon him by a continued sickness for a month. These considerations would undoubtedly be entitled to great weight, did not the event serve to justify the conclusion, thus announced by way of anticipation. As to the supposed duty to return, the remarks of Bennett, J., in Fenton v. Clark, upon the same point, afford a satisfactory answer, and need not be repeated. There is no occasion to consider the decision of the county court, in reducing the sum reported by the auditor to be due to the plaintiff, in consequence of the tender of cloth, as no exceptions were taken by the plaintiff.
The judgment of the county court is affirmed.