writer tells us that, " on an action brought on a promise of £1,000 if the plaintiff should find the defendant's owl, the court declared, though the promise was proved, that the jury might mitigate the damages. (c) But in truth the assertion of the right to sever the contract, to declare a part of it unconscionable and oppressive, and to decree performance of the remainder, is the exercise of an equitable power of a high order, the incautious exercise of which might lead to very dangerous results. And the decisions just cited would, I think, be more properly brought within the rule which governs cases of fraud and oppression. If the contract is on its face so extortionate and unjust as to bear evident marks of deceit, then, instead of wasting time in trying to reduce the relief to the standard of strict justice, the whole agreement should be pronounced void.

In connection with this branch of the subject, it is to be observed that mere inadequacy of consideration is no objection to a contract. Some consideration is requisite, but the sufficiency of the consideration cannot be inquired into. So in an early case, (d) where the defendant agreed, if the plaintiff would show him a certain lease, that he, the defendant, would pay the part due on it by a third party, it was objected that there was no consideration. "But it was adjudged for the plaintiff; for when a thing is to be done by the plaintiff, be it never so small, this is sufficient consideration to ground an action." So it has been contended that a guarantor of negotiable paper receiving a trifling percentage for his guaranty, could not be held liable for the whole face of the paper; but on the same ground he was held liable; (e) and the rule has been repeatedly declared, that the value of the services, or the amount of the consideration is of no importance, where a stipulated sum is agreed to be paid for the performance of a specific service. (f) It is only where fraud, mistake, illegality, or oppression intervenes, that the consideration can, in this respect, be inquired into.

67.

(c) Bacon Abr., Damages D.
(d) Sturlyn v. Albany, Cro. Eliz., p.

(e) Oakley v. Boorman, 21 Wend., 588. f) Trustees of Hamilton College v. Stewart, 1 Comstock, 581.

per day for every day during which the canvas was detained. The recovery should be limited to the value of the use for the entire period of the detention. Russell v. Roberts, 5 E. D. Smith's (N. Y.) C. P. R. 318.

The rule that the contract furnishes the measure of damages, is also subject to further remark. As a general principle, it is the actual loss alone for which the common law seeks to give

compensation; but in regard to contracts for the sale of [214] land we have already seen, (g) and in regard to contracts

for the sale of chattels we shall hereafter see, that in this country, if the vendor tenders complete performance on his part, he is at liberty to recover, not merely what he loses by the nonperformance of the vendee, but the entire contract price; while in England, on the other hand, the vendor of land is limited to compensation for such actual injury as may have resulted from the breach of the agreement. The American rule attributes to the common-law courts the exercise of the equitable power of compelling specific performance, as to the vendor, while at the same time the tribunal is incapable of enforcing either a transfer or a conveyance. (h)

Another apparent exception to the general rule has been made in the action of assumpsit for rent. So in England, in a suit for use and occupation where an agreement of hiring had been made at £450, with a right of sporting, and of occupation of the glebe, it was shown that the plaintiff, the landlord, had no power to grant the privilege of sporting, and that he also failed in procuring the glebe for the defendant's occupation. On this state of facts it was held by the English Common Pleas, "That an eviction of part of the premises being shown, the jury was to ascertain, independently of any agreement, what the defendant ought to pay." (2) I should be inclined, however, to doubt the accuracy of this language; the jury are, it is true, not to be absolutely bound by the agreement; but they cannot, I should suppose, act independently of it. The proper course would be to assume the agreed rent as the fair value of the entire premises, and on that basis to make a proper deduction for the portion which the tenant had not enjoyed; and this seems to be in analogy with the class of cases which we shall next consider.

Wherever a contract is indivisible, but one action can be brought for damages resulting from its non-perform- [215] ance; (j) but it often becomes a question, how far a contract is to be treated as entire. And a modification of the general rule which makes the agreement control the amount of damages, is also to be found in that class of cases where the contract is on its face an entire one, and having been performed only in part, compensation is sought for what has been actually done. (1) Such are cases of agreements to work for a specified time for a given sum, where the party employed quits his employment without the consent of the other, and before the period fixed; agreements to deliver a certain quantity of goods, and delivery of only a part; agreements to do work, as building for instance, according to certain specifications, where the work is done but the specifications are departed from; whether in these cases the party failing to perform his agreement strictly has any redress whatever, and to what extent, is a very delicate and much-vexed question, (2) which perhaps more properly belongs to the subject

(j) Campbell v. Gates, 19 Penn. State R., 483.

(1) When a party is bound by contract to perform a certain work, the agreement will be presumed to contemplate, unless the contrary is expressed, that if any part is to be omitted, there shall be a pro-rata deduction. Holmes v. Stummel, 17 Ill.,

455.

(2) There are also cases to be noticed in this connection, where the action is by the party employing a service, contracting for the erection of a building, &c. &c., to recover damages for the failure of the other contracting party to render the service, erect the building, &c., pursuant to the agreement.

Thus, on a failure to perform a contract let out by the county to the lowest bidder, who took it at much lower than was a fair compensation, the county again advertised and relet it. On a suit against the first bidder and his sureties, it was held, that the measure of damages was not the difference between the prices at which the contract was let, but the actual damage to the county by reason of the failure to perform the first contract. Chambers v. Fort Bend County, 14 Texas, 34.

In an action for the breach of a contract for work and labor to be done upon a farm, evidence of damage occurring to the plaintiff's crops in consequence of the defendant's leaving his service, is inadmissible. The legal measure of damages, in such cases, is the difference between the wages agreed to be paid to the defendant, and the price the plaintiff was obliged to pay for labor to supply his place. Peters v. Whitney, 23 Barb. (N. Y.), 24.

In an action to recover damages for the defective execution of a contract to construct and put up machinery in a flouring mill, in a well-finished and workmanlike manner, and of sufficient size and strength to correspond with the cylinders, the proper measure of damages is the difference between the value of the machinery

of the right of action than that of the measure of damages. The better and sounder rule would seem to be, that unless there is a waiver of the privileged performance, or an acceptance of the partial performance, there can be no recovery. (k) In

(k) It may not be improper, by way of elucidating the text, to take notice of some of the leading cases. The general principle established by the earlier decisions is, that where the contract is entire, as where A agrees to do a certain thing for which B is to make a certain compensation, the doing of the thing by A is a condition precedent, and he has no remedy until he has fully performed his part.

It has been held in some cases that where the party employing another puts an end to the contract without just cause, the party employed has a right to exact the entire amount of his wages. This, however, is subject to the right to recoup what the plaintiff could reasonably have earned during the time covered by the remainder of the contract.

But we

are now speaking of the relief claimed where the party employed has not performed his agreement.

So in England, where a master had given a mate a note, promising to pay him thirty guineas, "provided he proceeded, continued, and did his duty as mate, &c.," on a certain voyage to Liverpool, and the mate died during the voyage, it was held in a suit brought by his administratrix, that nothing could be recovered, either on the contract or on a

quantum meruit. Cutter, Adm'x, v. Powell, 6 T. R., 320. So if a builder un

dertakes a work of specific dimensions and materials, and deviates from the specifications, he cannot recover, neither upon the contract nor upon a quantum valebant, for the work, labor, and materials. Ellis v. Hamlin, 3 Taunt., 52. So, where A undertook for a specific sum of money to repair and make perfect a given article then in a damaged state, and did repair it in part, but did not make it perfect, it was held that he could not, in an action of assumpsit, recover for the value of the work done or the materials found. Sinclair v. Bowles, 9 B. & Cres., 92. So, where a servant hired for a year, refused to obey his orders, and was dismissed, and brought suit for the time he had actually been employed, it was held by Lord Ellenborough at nisi prius, he could not recover. Spain v. Arnott, 2 Stark., 256. So on an agreement to deliver one hundred bags of hops by a certain day, and part delivery being made and refused, suit was brought, the plaintiff was nonsuited; the court, however, using language somewhat ambiguous, saying, that "the contract was entire and could not be split, and that the plaintiff had no right to sue until the whole quantity was delivered, or until the time for delivering the whole had arrived." Waddington v. Oliver, 5 Bos. & Pull., 61; and the same decision was made upon a contract for the sale of one

actually put up, and that agreed to be constructed. In such an action the plaintiff is entitled to recover, in case the jury find that the machinery was not properly constructed, such sum as will be sufficient to put the same in the condition contemplated by the contract; also such sum as the mill would have earned during the time it was necessarily delayed in consequence of the breakage or defects in the machinery, taking the fair ordinary earnings of the mill, after deducting from the gross earnings the expense of running the same, as the net profits. So in case the contract is not performed in a reasonable time, the jury are to ascertain how long performance was unreasonably delayed, and then if they find the plaintiff was in a condition to work his mill, by having grain to grind, and is prevented from grinding the same by such unreasonable delay, the plaintiff is entitled to damages to the gross amount of the earnings of the mill, after deducting the expenses of the same. Davis v. Talcott, 14 Barb. (N. Y.), 611. To like effect is Singer v. Farnsworth, 2 Ind., 597. See also upon this subject, Waters v. Towers, 8 Exch., 401; Hughes v. Cannon, 1 Sneed., 622.

cases of this kind where the plaintiff is held entitled to [216] recover anything, the agreement of the parties, not having

(1) The same principle was laid down in Allen v. Curles, 6 Ohio, 505.

(2) To the same effect is Hutchinson v. Wetmore, 2 Cal., 310; Schnerr v. Lemp, 19 Mo., 40. But in Vermont it has been held that when an infant makes a contract with an adult, to serve for a given time, and quits before he has performed the whole