No question arises on the construction the contract set forth in the defendant’s notice, and by virtue of which he justifies his entry. It is a mere agreement for services, to be rendered by the one party, and to be compensated, by the other.
On the trial, the attention of the judge seems to have been drawn to the question, whether the agreement was any thing more than a mere licence from the plaintiff to the defendant, to enter the manufactory. And upon this question, the charge is undoubtedly correct. This agreement is something *576more than a licence. It is a contract, containing mutual stipulations between the parties. — But admitting this to be so, still the question arises, whether the remaining part of the charge can be vindicated. — Had the defendant a right to enter the manufactory, notwithstanding his dismissal ? And were the jury rightly instructed, when told, that upon the facts admitted and proved, their verdict must be in favour of the defendant Í
I. Suppose the dismissal of the defendant to have been without cause, as the charge obviously supposes, is his entry upon the premises justified ?
It may here be remarked, that the contract under which the right of entry is claimed, is a mere contract for services to be rendered by the defendant, within a stipulated time, and for a stipulated price. He had no interest whatever, in the profits of the establishment. He had no interest in enterm ¡ the manufactory, but for the purpose of entitling hints .,ai*lC wages as a servant. His obligations and his rights we- te procal, and correspondent — He was under an obli; ^,0 su* perform the services ; he had a right to enter the man :11' to enable him to perform them. That the plaintiff mig - ü'iC(^‘ released him from the obligation, cannot be denied ; for, su em' a party may waive a stipulation in his own favour, and for 111°" own benefit. And if he discharge the obligation, does he not thereby take away the corresponding right ? Suppose, then, that the defendant had not only been dismissed, but that his wages up to the time agreed upon, had been paid, according to the terms of the contract; under what pretence of right, could he, afterwards, have entered the manufactory ? True, his wages were not paid ; but he was dismissed. The plain tiff had precluded himself from ever demanding the perfor mancp of any further service under the contract. Wilbeam v. Ashton, 1 Campb. 78. And not only so, but if the dismissal was without cause, he had given the defendant a right to demand the payment of his wages, as fully as though every stipulation in the contract had been performed on his part : “ For if he who is to be benefited, by another’s performing his agreement, is the occasion why it is not carried into execution, the party bound to the performance, will be in the same condition as if the agreement had been literally fulfilled.” Per Hosmer, J., in Miller v. Ward, 2 Conn. Rep. 494. See also *577Whitney v. Brooklyn, 5 Conn. Rep. 405. 1 Pow. on Contr. 417. 420. and the cases there cited.
Now, can it make any difference, in point of principle, whether the plaintiff had paid to the defendant his wages, or whether he had given him a legal right to enforce the payment ?
The defendant, then, was under no obligation to enter upon the premises. From that he was discharged, by the act of the plaintiff. The entry was not required to assert, or give validity to, any legal claim; nor to advance any legal remedy. Why then should it have been made ?
The entry of one man upon the lands of another, without his consent, is, prima facie, a trespass, and requires to be justified. And it is difficult to see upon what grounds a justi-'cation can be sustained, when the entry is demanded by no i *'7. and attended by no possible advantage,
fore ]aw Up0n this subject I suppose to have been long since this c : anc¡ accordingly, we find it laid down, that “ where Mass. 4natcd, by indenture, to build a house of certain di405. 4 f within a certain time, for ten pounds, and an action scind .lant\vas brought, for non-performance of the contract, 1 rfefendant pleaded, that he went, and was ready to have fiuilt the house, and the plaintiff commanded him that he should not build it; by reason of which, he left it undone; and on demurrer, Littleton held this a good plea, for if the carpenter had come on to the plaintiff’s premises, after this omniand, the plaintiff might have had an action of trespass gainst him for his entry; and therefore, the commandment /as a sufficient discharge for the carpenter.” 1 Pow. Contr. 18.
It is, indeed, said, that the reason here given for the judgment, is not the opinion of the court, but is the mere dictum of Littleton. Admitting this to be true, it will hardly be denied, that the authority of Littleton is entitled to great respect; and the more so, as the opinion is cited, with apparent approbation ; and it is believed, that no opposing case or dictum is to be found in any book of authority.
.Again: It is insisted, that the plaintiff had not the power to rescind this contract; and that still being in force, the defendant had a right to enter under it.
The premises may be admitted, while the conclusion is de*578nied. It is not claimed, that the contract either was, or con id be rescinded, by the act of the plaintiff alone. Notwithstanding the dismissal of the defendant, the contract remained, and his remedy upon it was still open. But it does not therefore, follow, that ihe right of entry remained. It does not folio' that where a servant is dismissed without cause, and withet his consent, he has therefore the right to continue his employment, and to enter-the master’s house, in the face of in-prohibition. Such I do not understand to be the law ; but that the master has, at all times, the power to dismiss his servant, making himself responsible for the consequences, when he dismisses without cause.
2. But admitting this view of the case to be incorrect, and that the defendant had good right to enter the manufactory, provided he were dismissed without cause ; still the enquiry arises, whether the case was properly submitted to the jury.
It is stated upon the motion, that the defendant used insulting language to the plaintiff, and threatened him with person.u violence.
What the language was, or what were the threats, does not appear: and the question, whether they furnished a sufficient cause for the dismissal of the defendant, was not submitted to the consideration of the jury. It is, indeed, stated, that the plaintiff did not offer to submit the question, whether the insulting language and threats amounted to a violation of the defendant’s contract. And the charge, manifestly, proceed». upon the ground, that they afforded no cause of dismission, unless the contract was thereby violated. This position, I think, cannot be sustained, either on the ground of reason or authority.
In Atkin v. Acton, 4 Carr. & Payne, 208. the plaintiff cn tered into the service of the defendant, under an agreement to serve him as clerk and traveller, at 80Z. a year, and to live and board in the defendant’s house. The plaintiff assaulted his employer’s maid servant, with intent to ravish her. This was held to be good cause for his dismissal without notice; and Lord Tenterden was of opinion, that a person dismis-cd, under such circumstances, was not entitled to wages, even for the time that he had served. And in Callo v. Brouncker, 1 Carr. & Payne, 518. it is laid down, that moral misconduct, pecuniary or otherwise, as well as wilful disobedience, or !n-*579bitual neglect, is good cause for the dismissal of a servant. Indeed, is it to be endured, that a master may not rid himself of an impertinent or immoral servant, unless it can be shown, that some stipulation in his contract has been violated ? A man'is retained as the cashier of a bank, for a specified time. He discharges his duties promptly, and performs that which he is bound to perform, by the terms of his contract. But he is known to be a gambler in lotteries, or in the stocks, — and has acquired a character, which justly deprives him of all confidence. May not a board of directors exclude such a man from their banking-house and their vaults ? — And yet, upon the principle contained in the charge, I see not how this can be done. >
I think the charge cannot be vindicated ; — and would advise a new trial.
Peters, Williams and Church, Js., were of the same opinion. Daggett, Ch. J.I think, notwithstanding the opinion of the court, that the charge was entirely correct.
1. This is not an action against the defendant for endeav our-ing to entice or seduce his workmen from his employment ; but an action of trespass for an unlawful entry on his premises. The entry must have been without, or against the permission of the plaintiff. On this point there can be no doubt.
2. It is very clear, that by virtue of this contract between the plaintiff and defendant, he, the defendant, had a right to enter and occupy the premises till the contract had expired. His original entry, then, could not have been unlawful. The contract necessarily gave the defendant a right to enter ; for by the terms of it, he was to superintend it and its concerns. There was a full implication, then, of an authority to enter and remain. This doctrine is too clear to admit of doubt. He was hired for the express purpose of being and remaining there in fulfilment of his contract.
If the plaintiff had leased to the defendant a chamber in a dwelling-house, he would have given him all the necessary means of access to it. — If he had sold to him ten acres of land in the midst of his farm, he would, by implication, have granted to him a right of way to it. Then, surely, when he has bound himself, by contract, to pay the defendant for superin*580tending his manufacturing establishment, he has given t® him full authority to enter and occupy during the continuance of the contract.
3. It is insisted, that the plaintiff had a right, at any time, ; to violate the contract, on his part, and thereby obtain to himself a right of action against the defendant. This 1 cannot assent to; and if it be so, it is the only case within my knowledge, in which it can be done. This must be shown to be the condition of the parties ; for it will not be forgotten, that the motion finds, that the plaintiff did not propose to submit the question to the court and jury, whether the defendant’s words or actions were such as to justify the plaintiff in considering the contract violated on the part of the defendant; but he insisted on his right to forbid him to enter, at pleasure, that : is, without assigning any reason for it ; and then to maintain . trespass for entering. This was precisely what the plaintiff contended for, and which, as I understand it, the court sanctions. And in support of this doctrine, the following positions are advanced. 1. That when he who is to be benefitted, by another’s fulfilling his contract or agreement, is the occasion why it is not carried into execution, the contract thereby is entirely dissolved, and the party bound discharged from his obligation. This position is, beyond doubt, in the main, sound law. 1 Powell on Contracts 417. Miller v. Ward, 2 Conn. Rep. 494. Whitney v. Brooklyn, 5 Conn. Rep. 405. This position is illustrated in Powell 420. by the following case. A carpenter covenanted to build another a house upon his land for 10Z., and came prepared so to do, but was ordered by him to desist. The carpenter, after such command to desist, might have maintained an action for the 10Z. This is a perfect illustration of the rule, and it is in precise accordance with my ideas. The carpenter could recover the 10Z. covenanted to be paid to him, because the other would not permit him to enter on his premises to fulfil his contract; and heff was, therefore, the cause of his not fulfilling it: — he prevented him. — But is it so as Powell says, in the latter part of the position quoted — “ The contract or agreement is thereby entirely dissolved ?” I can understand why the contractor to build was discharged, to wit, by the refusal of him for whom he was to build, to permit him to enter for the purpose ; but l am at loss to see how the contract was dissolved as to the *581other party, who violated it; and especially, when the same 1 earned author (Mr. Powell) expressly says, (p. 420.) what is undoubtedly true : “ The carpenter, after such command to desist, might have maintained an action for the 10/.” Shall he be intended to have said, that the contract or agreement Was thereby entirely dissolved; or shall it be intended that he meant what was said by our own court of errors, in the cases cited of Miller v. Ward and Whitney v. Brooklyn, that the party preventing the performance had discharged the other, who was ready and offered to perform ? The latter, I presume, was what Mr. Powell meant to have said, father than to have asserted so bold a principle as that one party can rescind a contract ; or that an action can be sustained upon a contract entirely dissolved.
Rut, it is further insisted, that Powell, in commenting on this principle, cites (pp. 417, 18.) the very case from the Year Books, 18 Edward 4. where the carpenter was sued on his covenant for not building, to which he pleaded, that he went and was ready to have built the house, and that the plaintiff commanded him that he should not build it, by reason of which he left it undone. Littleton held this a good plea; and rightly so. This action was brought by the man who had (violated his contract, by refusing to let the carpenter build ; and like the cases before cited, the court laid down the law, that he could not recover. This is undoubted law, as I have before admitted ; and if the carpenter had brought the action, he would have recovered, as before shown.
But this is read from Powell, for the purpose of introducing what Littleton said, in deli-eering his opinion : “ If the defendant had come on to the plaintiff’s premises, after this command, the plaintiff might have had an action of trespass against him for his entry.” On this case, I have two remarks to make. First, it is not like the case in judgment. There, the carpenter had never entered, in performance of his contract, lie had come and offered to build ; and the plaintiff forbade him. Here, the defendant was actually occupying under a strong and irresistible implied authority from the plaintiff. Could the plaintiff, then, by a violation of the contract, on his part, make the defendant a trespasser?
Again, secondly, by looking into this case in the Year Books, as quoted, and also in Bro, Abr.tit, Covenant, pl. 31 fol. 188. *582it appears, that there were three judges, Littleton, Choke and Vavisour. They all concurred in the decision; but n6 one of them suggested any thing about the liability of the party in trespass, except Littleton. In his opinion, it was only put by way of illustration, and clearly is nothing but an obiter dictum. I should hope, before it be established as law, that a right to maintain an action of trespass can be gained, by a violation of a contract, some case would have been found and read to the court, or some elementary principle shown in support of such a doctrine.
3. The plaintiff should have, at least, offered to pay the defendant the proportion of his salary, due from November to January, and tendered it too, before he could insist on dismissing him from his employment, and forbidding him to enter, and on maintaining trespass against him, when, as the cose finds, he had not violated the contract on his part. It appears to me, such a principle is opposed to all the doctrine of contracts. It enables one party to rescind an agreement, at pleasure ; and thereby give to himself a right of action.
4. There is a rule of this court, that the point decided by the court below, shall appear on the motion, or in a writ oí error ; and that only shall be regarded. 6 Conn. Rep. 327. Now, the only point made in the superior court, as appears on the case presented, was, whether this agreement was a mere license, and revocable at pleasure. — That point is abandoned, now, in argument ; and the case put up upon a totally different point. I apprehend such a practice will not promote a correct administration of justice ; and that the rules adopted should be adhered to, or abandoned.
I am, therefore, not inclined to grant a new trial.
New trial to be granted.