Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1860-02-18
Ghe Aolpnesian.
Supreme Court.

Chief Justice Allen delivered the decision Of the Court
as follows:
This is action Of assumpst on a contract for labor
done and performed by the plaintiff for the defendants
and also upon quantum merut. There is also spe-
cal count for damages viz that the defendants did
furnish good, wholesome and sufficient food and water
and good and proper lodgings.
Ii appears that the plaintiff with others on the 18th
Of April last past entered into contract with the de-
PENDANTS to 60 the Phoenix Islands, there be en-
ployed in collecting and shipping guano for term not
to exceed twelve months, or until the Phoenix Guano
Company should wish his return hOme provided that
this-should take place within twelve months, at $40
per month it stipulated that he should have free
passage home after the expiration of the term of SER
vice.
It is in evidence that the plaintiff. s1ed from this
port on the 18th Of April last past for the Phoenix
Islands, where he arrived after the usual passage and
he continued to labor for the term Of MONTHS when
he refused to continue his labor and claimed that the
defendants should give him a passage home at that
time +; whereupOn there was difficulty between the
plaintiff and defendants agent at the island and
thereafter the plaintiff furnished with passage
home
It is contended the part of the defendants that
the contract for period optional with them not
exceeding twelve months, and the plaintiff by his
own showing had not complied with the terms of the
contract in this particular, he not entitled to
cover.
The counsel for the plaintiff contends that the con-
tract is not mutual because the time for It's expira
ton was not fixed at the period for both parties.
1t may have required for the party in whose favor
left to terminate the contract within the twelve
months to have given additional consideration. We
objection to the terms of the contract The par
ties have right to make contract for given period,
and there seems to be why il should not be
terminated at the option Of either party. of of
the parties 1t is not illegal nequitabe that it should
be Such contracts for hire reasonable and
venient in enterprise of this character for should
unsuccessful there mIOht ha for
the full term of service stipulated The court regard
the stipulation as founded in practical wisdom, and
should receive the sanction of the law In the case of
Down and Pinto, "A VOL English Law aud Equity Re-
ports, 5O3 it appears that the plaintiff engaged by
the defendant to superintend their smelling works, by
letter. in which they say Z" We shall require you
ter into engagement for at least three years.
option, at salary of ESQ" The Court held that
this contract to stay three years. and giving the
defendants the option Of terminating the service at the
end of each year.
The principle is here clearly recognized, that one
party to contract may have the option terminate it
when the other has not
There is q distinction in the American and English
dOctrnen this that in the latter country the parties
may make the contract with reference to general usage
which thereby becomes part Of the contract So that
labOriDg man, if turned away without notice and with
out fault, is entitled to months wages although
there is agreement to that effect and in the Of
Down Pinto referred to- the Court adiudged iudg-
ment due for the second year, the plaintiff had
tered upon that years service In the of Reab
Moore, 19 Johnson, 3S7 where the party had agreed
to work for eight months for thirteen dollars per month";
the Court regarded so far entire contract, that if
the plaintiff left, without cause before the eight months
EXPIRED he could not recover for any part of the tme
although he had worked than q month. as there
provision that he should be paid monthly In
Davis Maxwell, II Met, 2SG, the same principle is
recognized in Reab Moore although the defendant
had paid part during the continuance of the service
fol lako a
and leave the service of the employer before the exp
ration of the term without any cause, attributable
either to the employer the act Of Providence he
not recover his wages for the time he actually has Ia
bored, this has been a doctrine most fully and elabO
ratey discussed and approved by the Courts which
regard as of high authority. Winn SOuthgate, II
Verm. 3j5 Davis Maxwell, II Met 2S6; Hunt Is.
Otis, Man. Co. Met. 400 Thayer WadswOrth, 10
Peck 349 Cuther Powell, 6 L. X. 800 Ellis Us.
Hunter, Taunton 81 Ridgeway US. Hungerford Man.
Co., Ad. & t. 57l: Turner Robinson, Nal. D u.
& Ad. 789.
Upon our construction of the contract the whole
must be devoted to the labor specified before
payment for wages be legally demanded, unless ex-
ceptiOna payment be specified unless the contract IS
terminated BY the acts of the employer. The defend
ants promise to pay depends condition precedent
to be performed by the plaintiff when this is an ez
press agreement the claim must be settled upon its terms,
and not q quantum meruit; neither party has right
TO abandon the terms of the agreement Whoever fails
u
subject himself to liability. The weight of authorities
for long period in countries where their courts have
been accustomed to adudicate contracts OF this char
acter sustain this principle Of construction stare de-
is principle of great importance in preserving
consistency of judicial decision, and therefore deem
it wise to sustain this view, although in the of Brit
tan u.s. Turner N II. 481, the whole doctrine of these
authorities is resisted with great ability, and iHdeb-
tatus assumpst q quantum meruit is sustained
II is cOntended that the rights Of the employer are suf
g N Al. l.. l.. l,n-o
sustained from the breach of the contract may be de-
Quoted from the amount of the claim against him, or he
may have an action his damages for the
performance of his contract This prncp pie has been
most favOrably regarded by of the most eminent
writers on the law of contracts. The same question,
however, has arisen at more recent period in other
courts and been decided in conformity with the earlier
decisions. In the of Bealy Olmstead, 10 Pick
52S which action Of assumpsit for the balance
of pay of five month wages, where there was SPECIAL
made by the plaintiff for six months service, it
ruled that the entire performance was condition
precedent to the payment Justice Morton says, " We
have hestancy in adhering to our own decisions,
supported they by principle and long series or
adjudcations." Payar rs Mansfield, 2 Mass. X. l47;
Phelps rs Sheldon, Is Pick 30; Stark rs. Parker.
Pick. 267. In later case of Price U.s. Dwight Man.
Co., Cush. 80, the same doctrine is distinctly held.
The Court say that If the plaintiff agreed to labor
for the defendants for year. for instance, and le
their service the end Of six months, without cause,
she could not maintain an action Ior the services actu
ally rendered not exactly on the ground OF forfeiture.
but in consequence of the performance, on her part
of the special contract"
In Jennings Us. Camp, 13 John. "a, the Court laid
down this proposition that party who enters into
contract and performs part of it. and then without
cause and without the agreement, fault Of the other
party of his Voliton abandons the performance,
he cannot maintain action an implied assumpsit
for the labor actually performed of course he cannot
sue on the express contract This doctrine reeog
nized in the case of Lantry Parks. Cowen 63, and
subsequently in Sickles ct ais Pattison. Ia Wendell,
25T.
But it is contended by counsel for the plaintiff, that
il the contract obligatory in its terms, that the de-
PENDANTS have not fulfilled it their part, inasmuch
they haze furnished the plaintiff sufficient good
and wholesome food and water.