
    
      William F. Hunter vs. Mary Gibson.
    
    Plaintiff contracted to serve the defendant as overseer, and agreed “to abstain entirely from all intoxication, and to forfeit his wages if he got drunk and was dismissed.” Plaintiff did get drunk repeatedly, and was at length discharged. Held, that the failure of the defendant to discharge the plaintiff when he first got drunk, was no waiver of the agreement on the part of the defendant, and that the plaintiff was not entitled to recover on a quantum meruit for the time he served the defendant.
    
      Before Frost, J. at Lancaster, Spring Term, 1846.
    This was a sum. pro. to recover overseer’s wages from the 10th July to the 16th November, 1845, at the rate of $12 50 per month. The service of the plaintiff was proved. In defence, the written agreement between the plaintiff and defendant was produced, wherein, after the usual stipulations in such a contract, the plaintiff covenanted to abstain entirely from all intoxication, and to forfeit his entire wages if he got drunk and was dismissed.
    
    
      Stratford proved the plaintiff was turned away for intoxication. Caldwell proved that he saw plaintiff going home from court, at fall term, so drunk that he fell off his mule. Faulkner saw him drunk once, going home. He fell from his horse', and witness caught it, and supposed plaintiff went home. Once before this, the same witness saw him staggering, so that he could hardly keep his feet. Short proved that he saw plaintiff, “ what witness would call drunk,” twice — once at the house of witness, on Sunday, a short time before the plaintiff was discharged.
    
      Dr. Wiley proved, that having called on the plaintiff for payment of his medical account, after the plaintiff had been discharged, the plaintiff told him he had settled with defendant, and $14 was due to him, for which sum the plaintiff gave Dr. W. an order on the defendant. Payment was refused. Caldwell proved that the plaintiff had bought some bacon from the defendant, and had no means of supporting his family. Also that the plaintiff had the services of a woman, which were worth $4 per month. But the defendant having filed no claim for discount, this proof was withdrawn from the consideration of the jury.
    The plaintiff claimed a jury, and the case was submitted to them. On the law of the contract between the parties, they were instructed that if the plaintiff got drunk during his employment by the defendant, and was dismissed on that account, he forfeited all claim for compensation, and could not recover for any estimated value for his services. They found a verdict for the defendant.
    The plaintiff appealed, and now moved this court for a new trial, on the following grounds :
    1. Because his Honor charged the jury, that if they believed the witnesses (who swore that plaintiff did get drunk twice in October, and once in November, while in the service of the defendant) the terms of the written agreement, precluded his recovery; and as a matter of law, they were bound to find for the defendant.
    
      2. Because the evidence in the case shews that the parties changed the written agreement, and that the defendant waived the penalty.
    
      Smart, for the motion.
    
      Clinton, contra.
   Curia, per

Frost, J.

The agreement between the parties, dated the 10th July, 1845, stipulated that the defendant should employ the plaintiff in the capacity of overseer till the first of January ensuing, at the rate of one hundred and fifty dollars per annum, or twelve dollars and a half per month, to be paid at the end of the year; and the plaintiff, besides the usual stipulations in such a contract, covenanted to abstain entirely from all intoxication* and to forfeit his wages if he got drunk and was dismissed. The second ground of appeal is unsupported by anjr proof in the case. The forbearance of the defendant to enforce the forfeiture until she had been incensed by the plaintiff’s repeated intoxication, cannot be construed into a waiver of the agreement.

The question is presented, whether the plaintiff may apportion the contract, and recover on a quantum meruit., for the time he served the defendant. The general rule is, that a contract cannot be implied contrary to the express terms of an agreement. Every person is at liberty to make what contract he pleases, and unless exceptionable for illegality, immorality or fraud, it is the duty of the court to enforce it. No such exception can be made to the stipulation of the plaintiff to abstain from intoxication, and to forfeit his wages if he got drunk. The stipulation cannot be treated as if it were gratuitous. It is necessary to assume that it was the inducement of the defendant to employ the plaintiff, and the indispensable condition to the engagement of his services. The contract of the plaintiff was entire, to serve till the first of January. If he failed to perform it, either by leaving the service of the defendant, or by dismission for a cause which he had agreed should incur a forfeiture of his wages, he can have no claim for a partial compensation ; Cutter vs. Powell, 6 T. R. 320 ; Perry vs. Dunlap, 1 Hill, 401.

The motion is refused.

Richardson, O’Neall, Evans, Butler and Ward-law, JJ. concurred.  