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Stark v. Parker - 19 Mass. 267 (1824)

Rule:

If a contract is entire and executory, it is to be declared upon. Where it is executed and a mere duty to pay the stipulated compensation remains, a general count for the money is sufficient.

Facts:

This was an action of indebitatus assumpsit brought to recover the sum of 27 dollars, 33 cents, as a balance due for services rendered by the plaintiff on the defendant's farm. Plea, the general issue.

At the trial, the defendant admitted that the plaintiff had performed the service set forth in the declaration, and for the price therein stated, and that he, the defendant, had paid him from time to time, before he left the defendant's service, money amounting in the whole to about 36 dollars, and on account of his labor, but the defendant proved that the plaintiff agreed to work for him a year, for the sum of 120 dollars, and that he, the defendant, agreed to pay him that sum for his labor. He also proved that the plaintiff voluntarily left his service before the expiration of the year, and without any fault on the part of the defendant, and against his consent.

The judge thereupon instructed the jury, that the plaintiff would be entitled to recover in this action a sum in proportion to the time he had served, deducting therefrom such sum, if any, as the jury might think the defendant had suffered by having his service deserted;  and if such sum should exceed the sum claimed by the plaintiff, they might find a verdict for the defendant.

The jury having returned a verdict for the plaintiff, the defendant filed his exceptions to this instruction.

Issue:

Was the employee's service for one year on the farm a condition precedent to his right to a portion of the stipulated compensation?

Answer:

Yes

Conclusion:

The lower court found for the employee, but the court reversed and ordered a new trial. The court found that the employee's service for one year on the farm was a condition precedent to his right to a portion of the stipulated compensation. While the contract was executory, the employee did not have a right to maintain an action for the agreed on amount of compensation. The employee was required to perform before he was entitled to recover under the contract. He could not renounce the contract and then recover on a claim of quantum meruit when he voluntarily deserted the job. The court reversed the judgment for the employee and granted the employer a new trial.

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