
    Abbott Blanchard v. Thomas Butterfield.
    The plaintiff had undertaken to work for the defendant making shoes by ; the pair. Held, — that he could not charge and recover, on book, damages for lost time, when defendant neglected to keep him supplied with work. Neither could he, for that cause, without notice to the defendant or consent from him, abandon the contract to make by the pair, and charge by the month.
    This was an action of book account. The county court accepted the auditor’s report, which was for the plaintiff to recover only a part of his account, and rendered judgment thereon, to which the plaintiff excepted. The facts as reported by the auditor, sufficiently appear from the opinion of the court which was delivered by
    
      C. French, for plaintiff.
    
      JR. Washburn, for defendant.
   Collamer, J. —

The plaintiff was employed to make shoes for the defendant by the pair, the defendant preparing the work. It appears that this contract covered all the work the plaintiff performed and there was no abandonment of the contract; though either party had that right, by the terms of the contract. It also appears that the plaintiff was not kept constantly supplied with work, and he has charged for lost time, on that account. That is not labor done for, nor property sold to the defendant. It is damages for the defendant’s neglect. It is not chargeable in account. The plaintiff for two months charged by the month, instead of the pair, and excused himself for so doing on the ground that, for'considerable part of that time, he was not kept supplied with work. That would not justify the plaintiff in charging by the month, without first informing the defendant. There was no such hiring. The plaintiff could abandon the employment, when he pleased, but he could not let himself to the defendant by the month, when the defendant hired him by the pair. If he has lost what he actually did by the piece, during that time, he has lost it by not presenting his account therefor.

Judgment affirmed.  