We do not deem it necessary in this case to determine the question which has been made, whether the agreement between these parties is within the provisions of the statute of frauds. If it is, the law would give it no effect while it remained executory, and no action could afterwards be maintained on it, nor could it be used as a defence to an action brought for services rendered under it. It would be treated for these purposes, as though it never existed. But where the services, as in the present case, were not intended to be rendered gratuitously, the law would in such absence of any valid special contract between the parties, imply a promise on the part of a person who employed another to labor, to pay the latter what he reasonably deserved to have for his services, and he would be entitled to recover that sum. But, in determining what that amount should be, we are by no means prepared to adopt the principle which has been claimed to follow from the case of Comes v. Lamson, (16 Conn. R., 246,) that the price actually agreed upon for the *192services is not to be regarded. It is obvious, that such a rule would be productive of great injustice to an employer, where the agreement, invalid under the statute of frauds, was that the services should be rendered for a particular sum, which was less than such services would be worth, if estimated independently of any such agreement, and as if no price had been stipulated. (See Clark v. Terry, post.) If, however, the agreement in this case is not within that statute, we think that, on the facts found by the auditor, the plaintiff is entitled to recover the same amount. Considering it as a valid agreement, if the omission of the plaintiff, during the time when he was disabled by sickness from laboring for the defendant, was a violation of the special contract between them, it justified the defendant in refusing to receive the plaintiff back into his service; but if it was not, it constituted no such justification, and the plaintiff' had the right to treat, as he did, such refusal as a rescission of the contract by the defendant, and thereupon to bring an action on the promise which the law would, on the abandonment of that contract, imply on the part of the defendant, to pay the valué of the services which had been rendered. And, as an end would thus be put to the special contract, and the plaintiff’s right to recover would rest only on such implied promise, he would not be bound to wait until the expiration of the time fixed by that contract for its performance, as he must have done if it were not rescinded, and he had sought to enforce it, but might sue immediately.
The question then is, whether the omission of the plaintiff to labor during his sickness, was a sufficient reason, when he recovered and offered to continue to labor, for his dismission by the defendant, and this must depend on the true nature of the duty or obligation imposed on the plaintiff by the agreement between them. If such omission to labor constituted a wilful breach of such agreement, or is to be considered as standing on the same ground as a voluntary abandonment of the service of the defendant, it justified him in refusing to receive the plaintiff back into his service. If *193it came short of this, we are of opinion that it furnished no such justification.
It is difficult to reconcile the reported cases on the subject of the liability of an employer of a person who is hired to labor for a specified time, on wages to be paid at the expiration of that time, where such person has, without his fault, failed to labor for the whole of such time; or to extract from them any well defined rule. There is much confusion in them which seems to have arisen from the different views entertained by the courts, on the question whether such a contract of hiring is to be governed by the principle which prevails in regard to a contract to do a specific piece of work as to build a house, or a machine, for a particular sum; in which case the contract is held to be entire, and the performance of it a condition precedent to any right of action against 'the employer, and the non-fulfillment of it is not excused by inevitable necessity. We do not propose to examine those f cases in detail. In the earliest of them it was established, J that the same principle applied to both of these species of l contracts, and that therefore where the service of a person ! hired to labor for a specified time,-ceased within that time, there could be no apportionment of wages for the actual; time of service, and consequently no recovery for the services\ rendered during such time. But this rigid and unreasonable rule has recently been relaxed, and it is now.generally, if not j! universally held, that wages may in particular eases be ap- t portioned; which, in our judgment, is much more in accord- ¶ anee with the true character of such a contract, the presumed t intention of the parties, and the demands of justice. A eon-tract of this sort is for the personal services of the individual who is hired, and can not be performed by the agency of another person, and in this important respect is peculiar and different from a contract by which one agrees to do a particular piece of work, as for instance, to build a house, which may be performed through another person. It is unreasonable to suppose that the parties to such an agreement as the former, knowing that the person hired is liable to be interrupted in his labor by the act of God or inevitable necessity, *194intended or expected, although there should be no express stipulation on the subject, that he should in such an event, not only lose his services, but as the case might be, be bound even to repay to his employer what he has received in part payment for them. And it is obvious that a rule which! would subject him to these consequences, would be not merely harsh but unjust. - Viewing the present as a contract-for the personal services of the plaintiff, and which could only be performed by himself, we think that, from its nature, a condition was impliedly attached to it, that an inability to labor during a part of the time stipulated, produced by inevitable necessity, should so far constitute an excuse, for not laboring during that period, that he should not thereby be deprived of a right to a reasonable compensation for the service performed by him under it; and that the rule, that where a person by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, which properly understood, we do not intend to impugn, is-not applicable to such a contract. 1 Co., 98. Williams v. Hyde, Pal., 548. 1 Shep. Touch., 180. Gilbert on Covenants, 472. Nash v. Ashton, Skin., 42. In regard to a contract of this kind, we j are indticed to adopt, as the most suitable and just general j rule, in a case where the servant leaves the service before thejj end of the time for which he was hired, the one laid down by ] Chancellor Kent, (2 Comm., 258-9,) that unless he so leaves without reasonable cause, or is dismissed for such misconduct as justifies the dismission, he does not forfeit a right to his wages for the period for which he has served. It should be observed, however, that we do not intend to say that in such a case, he would necessarily be entitled to a proportional part of the sum agreed to be paid for the whole time, and that it should not be reduced so as to indemnify the employer for the loss which he has sustained by the non-ful- - fillment of the agreement. This case calls for no decision on that point. Applying the rule we have adopted to the present ease, we can not entertain a doubt that the absence of the plaintiff from the defendant’s service, being occasioned *195by sickness, was for a reasonable canse, and therefore constituted no sufficient reason for his, dismissal; and that the plaintiff is consequently entitled to recover the value of his services as found by the auditor.
We place our opinion on the distinction between a contract for personal services, and one in which they might be lawfully performed by the contractor either personally or by the agency of another, and it will be perceived that our views are, for the most part, in accordance with those of the supreme Court of Vermont,, in Fenton v. Clark, (11 Verm., 557,) which was a case in all substantial respects like the present.
Advice accordingly.
In this opinion, the other judges, Ellsworth and Hinman, concurred.