
    *A. Watts vs. William Todd.
    Plaintiff was employed by defendant, to make a crop with him, in 1839, and was to receive for his services one-fourth of the crop made. About the last of August, a misunderstanding arose. Plaintiff was dismissed, and in September following, commenced this action : Held, that plaintiff, by commencing his action in September, after he was dismissed, treated the contract as being rescinded, and has waived bis right to recover entire damages for the whole year; and has restricted his right of recovery to a compensation for his services on a quantum meruit.
    
    Before Earle, J., at York, Fall Term, 1840.
    The plaintiff was employed by the defendant to make a crop with him, in 1839, and agreed to give him one-fourth. About the last of August, a misunderstanding arose, in consequence of an occasional absence of the plaintiff, and he was dismissed by the defendant from his employment, and refused permission to return, on his application to do so. On the 26th of September, lie brought this action of assumpsit. There were two counts on a special parol agreement, and a general indebitatus assumpsit for work and labor. He claimed the value of his year’s services, or the value of one-fourth of the crop.
    It appeared in evidence, that there was a special agreement, in writing, differing in some slight particulars from the parol agreement set out in the declaration. For that reason, and also that the plaintiff had brought his action before the expiration of the term for which he had been employed, I held that he could only recover on the general indebitatus assumpsit count.
    It was proved that the crop was laid by before the plaintiff was dismissed : and that five hundred bushels of corn were made, of which the plaintiff’s share would have been one hundred and twenty-five bushels. To the value of this the jury added a reasonable allowance for his share of the fodder supposed to be made, there being no cotton or other crop planted. They then deducted the value of the plaintiff’s services for the remainder of the year, and some other items of discount, which were proved to be due the defendant, which sums united, exceeded the value of plaintiff’s share of the crop; and they found a verdict for the defendant, On the proof, I thought the plaintiff should have recovered something. Yet, if the jury could find less than the value of the year’s ^services on the indebitatus count, as they were instructed, I do not perceive that their mode of assessment was wholly unreasonable.
    The grounds of appeal are subjoined.
    GROUNDS OP APPEAL.
    1. Because the jury, in rendering their verdict, estimated fhe labor of the plaintiff per month, lower than the testimony on that point would justify them.
    2. That the verdict was entirely contrary to the evidence, there being no competent testimony on which they could render such a verdict.
    3. Because the plaintiff'should have been allowed for the whole year’s labor; the defendant having dismissed him without cause.
    4. Because there was not a particle of testimony to justify the jury in finding for the defendant, on the discount.
    5. Because the jury gave a verdict contrary to the charge of the presiding judge.
    
      See Dillard vs. Wallace, post. 484. Ryer vs. Stubbs, 1 Hill, 384; 5 Rich. 28, 466, 522; 2 Sp. 124.
    6. Because his Honor charged the jury that the plaintiff could not recover for the whole year’s labor.
    
      Witherspoon, for the motion. Williams and Clawson, contra.
   Curia, per

Earle, J

It is needless to refer to the well established rule on the subject of damages, in cases of entire contract. Such was the agreement between the plaintiff and defendant here. If the plaintiff had performed his contract to the end, he would have been entitled to his full wages for the year. So, also, if ready and willing to perform, he was prevented from it by the defendant, and dismissed without cause, he would have been entitled to full wages. But, in such case, he should treat the contract as subsisting to the end of the year; and could not recover upon it, until the expiration of the term for which he was employed. Without noticing the variance between the parol agreement declared on, and the written agreement proved in evidence, it is enough to remark, that the plaintiff, by commencing his action in September, immediately after he was dismissed, has treated the contract as being rescinded, and put an end to ; has waived his right to entire damages for the whole year ; and has restricted his right of recovery to a compensation for his services on a quantum meruit.

* Although there may be some reason to suppose that the jury estimated the value of the plaintiff’s services at a less sum than he did himself, and less than did some of his witnesses, yet, as they violated no rule of law, and adopted no arbitrary standard, there is no good reason to disturb the verdict.

The motion is therefore refused:

the whole court concurring.  