The plaintiff alleges that he entered into a written contract to discharge the cargo of lime on board the bark “ Laura Snow,” for a specified sum, and in a designated time.
That defendants, by their own action, annulled the contract, wherefore he sues on a quantum meruit.
An exception was filed by the defendants to the suit, on the ground that it is on a quantum meruit, when by its own allegations it appears that there was a written contract.
The exception was overruled, and the plaintiff was permitted to prove the allegations of his petition. There was judgment for plaintiff and the defendants have appealed.
In this court, the defendants rely upon their exception for a reversal of the judgment.
In our opinion, the exception was properly overruled. As plaintiff considered the contract to have been violated and cancelled by the conduct of defendants, he was entitled to incur the risk of establishing this upon the trial and to sue upon a quantum meruit. lie was not obliged to sue upon a contract virtually annulled by defendants, unless he had wished so to do.
Judgment affirmed, with costs of appeal.