Ackerman v. Middleby

• Decision Date: 06 December 1910
• Citation: 78 A. 615,75 N.H. 576
• Parties: ACKERMAN v. MIDDLEBY et al.
• Court: New Hampshire Supreme Court

78 A. 615

75 N.H. 576

ACKERMAN

v. MIDDLEBY et al.

Supreme Court of New Hampshire. Grafton.

Dec. 6, 1910.

Transferred from Superior Court, Grafton County.

Action by William J. Ackerman against Joseph Middleby, Jr., and another for breach of covenant with declaration amended by adding a quantum meruit. Trial before a referee and case transferred from the superior court. Judgment for the defendants.

The writ is dated September 8, 1904. On November 23, 1905, the plaintiff was allowed to amend the declaration by adding a count in quantum meruit for work done, materials furnished, and money paid out for the defendants. The referee found that on June 15, 1904, the plaintiff leased of the defendants a certain farm with tools and live stock, for a term of 9 1/2 months, or until April 15,

1905. The plaintiff carried on the farm until September 8, 1904, when, without sufficient cause, he left it and refused to carry it on. Up to that time he had worked on the farm and paid for help and teams in carrying it on. He received one half and the defendants the other half of the income of the farm from time to time, in accordance with the terms of the lease. He left all the crops on the farm, and they were afterward used by the defendants. The defendants received the benefit of the plaintiff's labor and expenditures, in excess of the damage sustained by them and of the income received by the plaintiff, to the amount of $82.50. If, upon these facts, the plaintiff is entitled to recover, he should have judgment for that sum and interest; otherwise there should be judgment for the defendants.

Marshall D. Cobleigh and Smith & Smith, for plaintiff.

Roland B. Stevens, Batcbellor & Mitchell, and Scott Sloane, for defendants.

WALKER, J. If it is conceded that the facts as reported show a liability on the part of the defendants to recompense the plaintiff for his loss, upon the theory of quantum meruit (Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713; Meredith, etc., Ass'n v. Drill Co., 66 N. H. 539, 30 Atl. 1119), it does not follow that he is entitled to recover therefor in this action, which was begun several months before the time fixed in the lease for the termination of the contract and the final settlement between the parties. It is familiar law that no recovery can be had upon a cause of action that arises after the suit was brought (Tappan v. Tappan, 30 N. H. 50; Child v. Powder Works, 44 N. H. 354; Thompson v. Mill Co., 62 N. H. 303); and it has been decided in numerous cases that when an employe or laborer is guilty of a breach of the contract of employment, and seeks to recover upon quantum meruit what his services were reasonably worth to the defendant, less the damage sustained by the latter in consequence of the breach, he cannot maintain an action therefor before the time when payment became due under the contract. Hartwell v. Jewett, 9 N. H. 249; Bailey v. Woods, 17 N. H. 305, 369; Thompson v. Phelan, 22 N. H. 339; Davis v. Barrington, 30 N. H. 517, 530; Smith v. New Castle, 48 N. H. 70; Blodgett v. Berlin Mills, 52 N. H. 215; Lee v. Dow, 71 N. H. 320, 328, 51 Atl. 1072. When he has refused to perform his engagement and brings an action upon an implied promise for what may be equitably due him, no reason is apparent why he should force the defendant to pay him at an earlier date than he could have done, if he had performed his contract. "Justice requires that the defendant should not be prejudiced in this respect; and we think the defendant may set up the original contract, to show that, though perhaps the plaintiff may deserve to have something, still that he cannot rightfully have anything of the defendant until such time as the original contract, if fulfilled, would have been payable," and "that he shall not receive compensation for services arising on occasion of a contract sooner than he could have...