
    James S. Casten, Resp’t, v. George V. Decker, Appl’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October, 1886.)
    
    •Contract—Entire—Excuse for non-performance—Quantum meruit. The plaintiff made an agreement with the defendant that he and his wife would work for him for a stated term at a fixed compensation per month; before the end of the term agreed upon the plaintiff ceased work under the contract, alleging as the reason the sickness of his wife. Held, that the agreement was an entire and indivisible one for service, and the plaintiff was not entitled to recover without complete performance, unless such performance was in some manner excused. Held, that the sickness of his wife was an adequate excuse. There was no means provided by the terms of the contract to sever the services of the plaintiff and his wife so as to require or enable the plaintiff himself to proceed without some new arrangement; that the plaintiff was entitled to a recovery upon the quantum meruit for the services performed by him and his wife.
    Appeal from judgment d£ Chautauqua county court reversing a justice’s judgment.
    The evidence tends to prove that the plaintiff made an agreement with the defendant, that he and his wife would work for him for the term of seven months, at the price of twenty-five dollars per month; that they entered into the service of the defendant under such contract March 3d, 1884, and continued to work until the 19th day of June, and not thereafter. The reason given by the plaintiff for the termination of the service was the sickness of his wife. At the close of the evidence on the part of the plaintiff, the motion of the defendant for a non-suit on the ground that the plaintiff had “failed to make a case” was granted. And on appeal the judgment of non-suit entered by the justice was reversed by the county court. The plaintiff appeals.
    
      J. G. Record, for app’lt; Jas. E. Bixby, for resp’t.
   Bradley, J.

The agreement was an entire and indivisible one for services, and the plaintiff was not entitled to recover without complete performance unless such performance was in some manner excused. His evidence was to the effect that his wife was taken ill and unable to proceed with the work on her part. This, if so, was an adequate excuse for not proceeding with the further performance of the contract,. There was no means provided by its terms to sever the services of the plaintiff and wife so as to require or enable the plaintiff himself to proceed alone without some new arrangement, which, as his evidence tends to prove, he and the defendant were unable to make. The evidence of the plaintiff, if taken as true, was sufficient to justify a recovery upon the quantum meruit for the services performed by him and his wife. And the stipulated price mentioned in the contract was some evidence of the monthly value of their services, subject to reduction or abatement of such amount by evidence on the part of the defendant. Fahy v. North, 19 Barb., 341; Wolfe v. Howes, 24 id., 174, 666; affirmed 20 N. Y., 197; Clark v. Gilbert, 26 id., 279; Spalding v. Rosa, 71 id., 44; Seymour v. Cagger, 13 Hun, 32.

'The evidence presented a question of fact for the justice to determine in the consideration of the case upon the merits. And he would have been justified in finding against the plaintiff, because an important fact, vital to his cause-of action, rested wholly upon his testimony. The question of his credibility in view of his relation to the action was for' the consideration of the justice. And the finding against him of any fact supported only by his evidence would not have been error. There was also some evidence given by him bearing upon the question whether the sickness of his wife was such as he represented it, and the actual and necessary cause of the discontinuance in the service of the defendant. ¡But the difficulty is that the justice declined to consider the case on the merits or on the facts presented by the evidence, and disposed of it as matter of law by non-suiting the plaintiff, and thereby holding that no facts were furnished by the evidence in any view that bright be taken of it to permit or support a judgment for the plaintiff. This was error. The duty of the trial court required by the evidence was to determine the question of fact furnished by the evidence. And his judgment either for, or against the plaintiff, upon the evidence as it stood when the non-suit was granted would not have been without support. There is nothing in the form of pleading to defeat the plaintiff’s right of recovery, and no such question was raised by the motion for non-suit.

The judgment should be affirmed.

Smith, P. J., Barker and Haight, J.J., concur.  