I. The true meaning of the contract was that the drawing and carring of the timber should be fully completed on the 15th of March. The proviso was put in not to enlarge the time for carring the timber beyond March 15, but to enable the defendant to require it to be earred at any time during the winter after it was drawn, if his interest and the condition of the market might require.
II. Where there is a special contract for labor and an entire sum to be paid therefor, and the plaintiff has performed a part according to its terms, and has been prevented from performing the whole by the act or default of the defendant, he may sue either on the contract to recover damages for the breach of it, or jq general assumpsit to recover for the value of what he has done.
*83If he sue on the contract he must set it forth specially, and then his damages for what he has done under it must be regulated by the contract price, and he will recover such a proportion of the whole contract price as the work he has done bears to the whole work to be done under the contract. And in such a suit he may recover whatever other damages he may have sustained by the defendant’s breach of the contract — as for instance, if the contract were a profitable one, the profit he would have made by being allowed to complete the contract, and the damages he may have incurred in providing labor and means to perform the residue.
If he choose to waive the contract and sue in general assumpsit for work and labor (which he may do when he has been prevented from completing the contract by the act or default of the other party) then his measure of damages will be a reasonable compensation for the work actually performed. He is not then limited to recover a pro rata share of the contract price.
These principles have been recognized in this State. See Derby et al. v. Johnson et al., 21 Vt. 18, where Judge Hall directly sets forth the rule and refers to. decisions in support of it in this state and elsewhere. The opinion of Judge Royce in Boardman, administrator v. Keeler, 21 Vt. 84, recognizes the rule as we have here stated it, when the action is on the contract.' In the American notes to Smith’s Leading Cases, Vol. 2, p. 38, et seq, there is a full collection of the American authorities on the subject, and they seem generally to concur in the same principles.
Here there is a special count upon the contract and a general count for work and labor. The plaintiff does not appear to have claimed damages for holding himself, his servants and teams in readiness to car the timber, nor does he set forth any special damage in his declaration. The court charged the jury that the plaintiff was entitled to recover a fair compensation for his work in drawing the lumber, provided that such compensation did not exceed the whole amount of the contract price. No claim appears to have been made by the plaintiff or alluded to by the court for any other damages.
The damages, viz: fair compensation for the work actually done, the plaintiff was entitled to under the general count. He had the right to waive the contract and proceed upon the *84quantum meruit; and as lie appears to have done so, the charge of the court was correct.
In Preble v. Bottom, 27 Vt. 249, the question did not arise whether the rule of damages should he a fair compensation for the .work done, or a pro rata compensation according to the contract price ; nor does it appear which would have been the rule most favorable to the defendant. The question there raised was whether a pro rata compensation according to the contract, or what the plaintiff’s labor was worth to the defendant, upon the ground that the plaintiff had failed to perform, should be the measure of damages. That decision therefore does not apply to this case.
Judgment affirmed.