(106 A.)

transaction, and are necessarily put in issue and, if not, the jury were directed to consider in the plaintiff's own pleadings.

That case is based upon the theory, and establishes the practice, that, when a party is guilty of a breach of his special contract and sues on a quantum meruit, he must in his suit make the defendant whole, for damages suffered by the breach, as he is entitled to recover only what the value of his services have been worth to the defendant. "Quantum meruit" means "what he merits." Damages are in issue, not by plea, but by the nature of the plaintiff's action. The moment he brings quantum meruit on a contract, he acknowledges a breach, and admits notice that he may have damaged the defendant by such breach. Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. And the only object of a brief statement, under our present form of pleading, is to give notice of the defense to be made. The rules of special pleading were abolished and superseded by the general issue and a brief statement, for the express purpose of abrogating the technical forms and permitting notice of defense regardless of form. Substance was substituted for form. Accordingly, the technical requirement being obsolete, actual notice is all that is now required. And when a party is charged with| notice of the defense by his own pleadings, it would seem a useless form to require further notice, under the general issue. McCormick v. Sawyer, 108 Me. 405, 81 Atl. 482, Ann. Cas. 1913B, 316.

This is also the well-settled law, as will appear from an analysis of Hayward v. Leonard, 7 Pick. (Mass.) 181, 19 Am. Dec. 268, and Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. Both cases were tried under the general issue, and the former was "the original case" in Massachusetts where it was held that a quantum meruit would lie in case of breach of a special contract.

Parker, C. J., on page 184 of 7 Pick., says: "We think the weight of modern authority is in favor of the action, and that upon the whole it is conformable to justice, that the party who has the possession of materials and labor of another shall be held to pay for them, so as in all events he shall lose nothing by the breach of contract.

"And yet he [the party guilty of a breach] certainly ought not to gain by his fault in violating his contract, as he may, if he can recover the actual value. * * The owner is entitled

to the benefit of the contract, and therefore he should be held to pay in damages only so much as will make the price good, deducting the loss or damage occasioned by the variation from the contract."

It should be observed that "actual value" was precisely what the plaintiff got, under the charge quoted. The court then further say:

"But the case was * put to the jury merely on the question whether the house was built pursuant to the contract or not; 106 A.-28

what the house was worth to the defendant, and
to give that sum in damages. We think this is
* * * They
not the right rule of damages.
should have been instructed to deduct so much
from the contract price as the house was worth
less on account of these departures."

A new trial was granted. Just what the logs "were worth to the defendant" was all the plaintiff had to show. We are unable to discover any material distinction between the instructions given in the case at bar and the instructions which were regarded as error in the case just cited. It should be kept in mind that the case cited was tried under the general issue, for we are now discussing the question of pleading, and that under that plea the defendant was allowed to deduct his damage on account of the breach, as we think the defendant was entitled to do in the case at bar. Otherwise the plaintiff might just as well have brought assumpsit upon an account annexed for lumber sold and delivered as upon a quantum meruit on a breach of his own contract. It would seem reasonable that a contract ought to mean something in such a transaction and impose some duty upon the plaintiff, who admits a breach, and asks to recover, not on a contract, but on account of the breach of the contract, for that is just what quantum meruit means in this class of cases.

Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455, illustrates and confirms the doctrine of the opinion above referred to. Every issue raised in the present case was raised in that case and settled in favor of the practice that the defendant was entitled to have his damages deducted from the recovery of the plaintiff, under the plea of the general issue. That was a case of quantum meruit under a special contract. The court referred to the case of Hayward v. Leonard as the principle of justice upon which such form of action can be sustained. It clearly differentiates between an action on a contract and a quantum meruit on account of breach of the same contract. The first is based upon a strictly legal procedure and requires a special plea in recoupment, or the equivalent by way of brief statement, or at least notice of what the nature of the defense may be, as held in McCormick v. Sawyer, 108 Me. 406, 81 Atl. 482, Ann. Cas. 1913B, 316. The second, however, is purely an equitable procedure introduced into Massachusetts practice in "the original case of Hayward v. Leonard (Mass.) 7 Pick. 181 [19 Am. Dec. 268]." Accordingly, prior to 1829 this equitable right was not attainable in Massachusetts. Since then this equitable rule has prevailed upon the principle of equity, under special rules of law.

The Gillis Case held that quantum meruit is founded upon the theory that the action per se is an admission on the part of the plaintiff that he is guilty of a breach of his contract, and that he seeks to recover, not

the contract price, but for whatever benefit ( ward v. Leonard for work done under a special he may be able to show his services or his material have been to the defendant. On page 592 of 177 Mass., on page 458 of 59 N. E.,

it is said:

"If he resorts to recovery under the rule in Hayward v. Leonard, because, being in default in the performance of the contract, he

has no rights under it, he has not the same right
to recover for the value of the work done and
materials furnished by him, that a person has,
who has done work and furnished materials as he
has been requested to do. In the latter case, it
ts immaterial whether the result of his work is
of any value to defendant or not.
* But
one who had done work under a special contract,
and resorts to a recovery under the principle of
Hayward v. Leonard, recovers on the ground,
and only on the ground, that the result of his
work is of some benefit to the defendant; he
comes into court admitting that he has not done
what he agreed to do and that he cannot hold
the defendant on his promise to pay him the
contract price. More than that, he admits that
the part, which he has failed to perform, is one
that so far goes to the essence of the contract
that it is a condition precedent to a recovery by
him on the contract, for, if the part which he
agreed to perform, and did not perform, was of
slight importance, it is not a condition preced-
ent; he can recover the contract price without
performing it, and the only advantage which the
defendant can take of it is by way of recoup-
ment, or by a cross-action, in which the burden
was on him, the defendant, to prove the damage
he has suffered from its nonperformance."

It should be noted that the court specifically states what the rule of pleading would require if the action was upon the contract. Then the court proceed:

"The only ground, on which a plaintiff, who resorts to a recovery under the principle of Hayward v. Leonard, is entitled to recover anything, is that, though, so far as his contract rights are concerned, he is entirely out of court, yet it is not fair that the defendant should go out of the transaction as a whole with a profit at his (the plaintiff's) expense, and therefore if the structure, which, for the purposes of a recovery on this ground, he necessarily admits does not come up to the contract requirements in essential particulars, is, nevertheless, a thing of some value, the defendant ought to make him compensation therefor. That such is the ground in which a recovery can be had in such a case was laid down in the original case of Hayward v. Leonard, 7 Pick. [Mass.] 181 [19 Am. Dec. 268], and has been repeated in the subsequent decisions."

contract does not recover on the same ground as that on which a plaintiff recovers who has done work as he has been requested to do. So far as his case travels on that ground, he is out of court; his sole claim to be paid anything is that, if he is not paid, the defendant will profit at his expense; until he has proved that the defendant will in that case profit at his expense, he has not made out a prima facie case to be paid anything, and, until he has proved how much that profit will be, his prima facie case is not complete."

The court then state that he cannot make out a prima facie case in the regular way by proving the value of his work and materials, but, "to make out a case for recovery for such work and materials so furnished, he must prove how much the result of his work had benefited the defendant, he must prove what the fair market value of the thing produced by his misdirected work is, and, until he has done that, he has not made out even a prima facie case on which he is entitled to recover anything." The court then go on to say with reference to the pleading that—

"It is immaterial at what stage of the trial the fact appears that the work for which a recovery is sought on a quantum meruit was done under a special contract, which the plaintiffs have failed to prove was performed. When that fact does appear, the contractor who seeks a recovery by reason of such work has the burden of proving what the fair market value of the result of his misdirected work is and unless, and until, he proves that, he does not show himself to be entitled to anything. In such a case, as in all cases where a plaintiff sues on a quantum meruit, there is no question of recoupment. The only question is: How much does the plaintiff deserve, under all the circumstances? And this arises under the general issue."

Upon this point several cases are cited. The last quotation, however, concisely settles the question of pleading in this class of cases, and is entirely consistent with the equitable theory upon which quantum meruit is based. Finally the court say the contention of the plaintiffs in this connection comes to this:

"While a plaintiff who has done work under a special contract, when suing on the contract, has the burden of proving that he has complied with its requirements, yet, on his failing to sustain that burden he can, by resorting to a count of quantum meruit, and by proving the value of the work done by him (which he failed to prove was a performance of what he agreed to To this point many cases are here cited. perform), shift the burden of proof and throw It is then stated that 12 years before Hay- on the defendant the burden of proving that he ward v. Leonard it was decided that there committed a breach of the contract; and that, could be no recovery on the doctrine after- in this way, he can entitle himself to the value wards stated at length in that case, if the of that work to the same extent as he would result of the plaintiff's misdirected work was have been entitled had that work been done in not a thing of value. In view of this lasted to have it done; and to recover that valthe manner in which the defendant requeststatement, the court then further say:

ue unless the defendant goes forward and, "It is plain, therefore, that the plaintiff who by way of recoupment, cuts that amount down seeks a recovery under the principle of Hay- by proving that he (the plaintiff) committed a

(106 A.)

breach of the contract under which the work was done, and that he (the defendant) has suffered damages from that breach and proves the amount of those damages."

These contentions were specifically denied in the opinion.

It would appear from this summary that in the Gillis Case were made precisely the contentions which were made in the case before us, and especially that the defendant by way of recoupment must assume the burden of cutting down the amount proved by the plaintiff, and the amount of those damages. This contention, as above seen, was overruled by the court. We have cited this case thus fully because, as before stated, it discusses fully the very foundation upon which quantum meruit is based, the ground upon which the action can be maintained, the procedure which the plaintiff must follow, the amount to which he is entitled, and the pleadings upon which the defendant is authorized to present his side of the case. It will now be seen by comparison that Jewett v. Weston, decided in the 11th Maine in 1834, was based upon Hayward v. Leonard and is in perfect accord with the principles and procedure in this form of action found in the well-reasoned opinion just discussed. We have not yet discovered a single opinion which contravenes the reasons, the procedure, or the form of pleadings so fully and carefully laid down in the Gillis Case.

If we now recur to the ground upon which this phase of the case was put to the jury, we find it to be this, as taken from the final word upon this point from the charge of the presiding justice, leaving out the intervening and immaterial clauses:

"But the question is: Does the plaintiff deserve to recover for the logs which he had furnished in good faith under the circumstances discussed in this case?"

We therefore conclude that the defendant's contention that he was entitled to claim and show damages for breach, and to have those damages deducted from what the plaintiff was entitled to recover for the logs he actually delivered, was correct and should be sustained. If the case stopped here, exceptions should he sustained and a new trial granted. But while the plaintiff brought his action in the form of quantum meruit, he was permitted to offer evidence upon the question of damages, that the contract was substantially performed, and that no damages followed. The latter question was submitted to the jury for a special verdict, and they found in favor of the plaintiff.

[3] While the defendant should have been allowed to reduce the value of the logs actually delivered, by way of damages for breach of contract, yet, if the jury were justified in finding that the plaintiff fulfilled his contract, then no damages could follow. This question is one of law and fact. The interpretation of the contract, we think, is a question of law; whether modified, a question of fact. Its language is clear and unequivocal, as to the quantity of logs to be furnished each season. We repeat the paragraph on this question:

"Said Boyd & Harvey Company and Blaine S. Viles agree to sell the Kennebec Lumber Company about four million (4,000,000) feet to be cut during the winter of 1914-1915, about five ter of 1915-1916, and about five million (5,000,million (5,000,000) feet to be cut during the win000) during the winter of 1916-1917."

[4] The word "about" should be understood as limiting all feetage herein considered. We think it was conceded that this was a divisible contract. However this may be, we have no doubt about it. The language makes each season's cut as distinct as though there

Yet the court stated the contention of the was a separate contract for each cut. The defendant in this way:

"The defendant has stated to the court during the trial, and he has urged to you, that in arriving at that figure at what the plaintiff reasonably deserves to have, if you come to that, he is entitled to have you deduct the damages which the defendant has sustained by reason of the nonperformance of the contract. I say to you, and I have already stated to him that, in my view of the law, under the issue as it is framed here, I cannot give you that rule."

first 4,000,000 was to be cut during the winter of 1914-1915. The phrase, “during the winter," limits the cut and the amount to this particular season. Under the first clause of this contract, the defendant was entitled to about 4,000,000 feet. If he got this quantity, this clause of the contract was completed. If he got less, it was a matter of adjustment. If he got more, that also was a matter of adjustment concerning this first season's cut. To cut less or cut more would be a breach by The court then states that the reason for the plaintiff. The plaintiff did cut more. not giving the rule is because under the The defendant was not obliged to take it. general issue the plaintiff was not entitled to It did, however, adjust the matter, and left have the issue as to the damages he had the first clause of the contract satisfied and suffered on account of breach of the contract ended. It agreed to carry the surplus of the considered in connection with the plaintiff's first season to the credit of the next season action of quantum meruit. "Not, you see, and take 3,800,000 instead of the 5,000,000 whether the defendant was left short of logs specified in the second clause of the contract. for his mill; that is not the question." But, This arrangement was mutually agreed upas before seen, this very question was put in on between the plaintiff and defendant, as issue by the form of the plaintiff's action. the undisputed evidence shows. This set

tlement included pine as well as fir. The defendant. Whether the word "about" ought season's operation was closed. All the logs to take care of a shortage of 1,000,000 feet of the 1914-1915 cut were paid for in full, in 14,000,000, quære? some at a special price, as testified by the plaintiff. This settlement, so far as we can see, resulted in a completed transaction so far as the first clause of the contract was concerned, involving the 1914-1915 cut. The second clause of the contract was precisely like the first, except the cut was to be 5,000,000, and "during the winter" of 1915-1916.

Me.)

(106 A.)

These answers were obtained after a long and somewhat grilling cross-examination in regard to the interpretation of the abovequoted clause. Just prior to these questions and answers, when the specific question was put, Mr. Boardman answered as follows: "Q. To get the balance, you had to find out how much you had? A. Yes (another mathematical deduction). Q. Wasn't that just what you meant, for him to subtract from the total, what you had had, and furnish you the balance? A. Not from the total of what he had furnished, Mr. Pattangall."

Up to the time of this letter not a word had ever been said between these parties about applying the surplus cut of the two previous seasons to the cut of the last season, nor to the entire contract. Nor was a word in regard to it ever said after the letter until the parties met in court, when the plaintiff raised the question. We do not think that a fair interpretation of this letter, in the light of the circumstances and the testimony, bears out the interpretation the plaintiff seeks to put upon it. In the first place, there was no occasion for the defendant to write at all about the feetage of the contract. The two previous operations had been completed and settled without a word about it, and the contract called for about 5,000,000. But in the two previous operations a certain amount of pine had been cut which the defendant was not obliged to take, but he had taken it and settled for it. This season the defendant did not want this pine, as a part of his supply.

during the coming year, but would like the full quantity of fir due us under contract."

"Fir" instead of "pine," was the object of this letter. That the plaintiff so understood it both as to "fir" and feetage for 1916-1917 clearly appears from his own testimony. Before he received the letter he was cutting pine as usual for the defendant.

Q. Will you tell us about the pine, why you got so little? A. The reason I stopped, on receipt of the letter, or as soon as I could get up river, I stopped my operation cutting the small pine and put it into this fir mark.

But,

This shows what the letter meant. if there was any doubt that the plaintiff understood the letter to make no modification, his own testimony, as to the quantity he intended to cut, removes it.

Q. What arrangement did you make to get Mr. Boardman fir that winter (1916-1917)? A. Why, I planned to cut Mr. Boardman-how A. I planned to cut him much fir? Q. Yes. about 2,000,000 of fir myself. I talked with Boyd and Harvey, and they expected to cut a million or more, and, as I learned that they were getting more, I figured they would probably get about 2,000,000. They cut a million of pine, that is, with the pine they cut that winter, and I figured that would fill the contract of 5,000,000.

It is very evident that the plaintiff at this time did not regard this letter as a modification of his contract in regard to the 5,000,000 feet for 1916-1917, but planned and expected It is equalto cut this quantity this season. ly evident that Mr. Boardman never intended it as such. Consequently, the parties neither understood nor consented to any modification.

It is therefore apparent, from reading this whole letter, that the sole occasion and motive for writing was to differentiate between So far as we are able to deterfir which his contract called for and pine which his contract did not call for and which mine, the question was first raised in court, he did not want. The wording, “balance of after the parties had engaged in a legal conHence there was no ratification. fir to make up," etc., is an awkward way of troversy. We are of the opinion that the plaintiff has stating the claim; but, read with the rest of the letter, its meaning seems clear that not presented any competent evidence, showthe defendant in substance says, I wanting a modification of his original contract. "fir," instead of any "pine," to make up the The special verdict, based upon such modiThe question balance of my contract or to make up the fication, should be set aside. total quantity called for by the contract. of damages was thereby left open. The inThe very next sentence is: structions upon the mode of procedure involving the measure of damages was erroneous. Exceptions sustained.

"Nothing has been said about pine tops this

year.

* * We would not care for any more