Sec 715

A contract of common carriage is dependent upon the delivery of the goods at a designated place; and if by casus such delivery is prevented, the carrier cannot recover pro tanto for freight for the part of the route over which the goods were taken.2 It is otherwise, however, in cases where the owner resumes possession of the goods at an intermediate point, accepting delivery at that point in lieu of delivery at the point of destination.3

Sec 716

A party who is employed at fixed wages, and who is wrongfully dismissed during his term of service, or whose term of service is otherwise closed by the employer's action, is entitled, if he elect to rescind the contract, to recover on a quantum meruit for the work done;4 or he may recover damages independently for the breach of contract, electing to consider it still in operation, and binding the employer.5 Hence, when there has been a contract for service, even on a salary not due until the close of a year, and the employer chooses to dismiss without cause the employee at the end of a quarter, the employee can maintain at once an action for his services on a quantum meruit, or he may sue for damages caused to him by the wrongful dismissal, as a part of which damages his salary pro tanto may be included.1 Even when there is an employment to do a specific work (locatio operis), e.g., painting a picture, and the employer stops the work before completion, the employee may recover on a quantum meruit.2 If the suit be for damages, they may be reduced by showing that the servant refused other suitable employment, and remained idle when he might have received wages.3 When the contract is to complete a specific piece of work, the employer, by preventing the completion of the work, may make himself liable for a breach of contract.4 As a rule a party who disables himself from performing his part of a contract, cannot set up as a defence a technical default in the other party.5 - When a contract is determined by mutual consent, the employee may recover wages pro rata,6 and so when the term is broken into by the employer's death.7

Contracts of common carriage dependent on completion.

When service is broken into by employer, back wages may be recovered on quantum meruit or for damages.

1 Britton V. Turner, 6 N. H. 481; adopted in Fenton V. Clark, 11 Vt. 560; Duncan V. Baker, 21 Kan. 99; Parcell V. McComber, 11 Neb. 211. But see Olmstead V. Beale, 19 Pick. 529; infra, sec 718.

2 Leake, 2d ed. 70; Cook V. Jennings, 7 T. R. 381; Metcalfe V. Ironworks Co., L. R. 1 Q. B. D. 613; L. R. 2 Q. B. D. 423; Caze V. Ins. Co., 7 Cranch, 358; Columbia Ins. Co. V. Cat-lett, 12 Wheat. 383. This applies where a ship is brought in by salvors, The Kathleen, L. R. 4 Adm. 269; and where the master is obliged to sell part of the cargo at an intermediate port for the refitting of the ship. Hopper V. Burness, L. R. 1 C. P. D. 137.

3 Ibid.; The Soblomsten, L. R. 1 Adm. 293.

4 Supra, sec 605, 714; Planche V. Colburn, 8 Bing. 14; Chicago V. Tilley, 103 U. S. 146; Alexander V. Hoffman, 5 W. & S. 382; Campbell V. Gates, 10 Barr, 483; Mitchell V. Scott, 41 Mich. 108; see Weber V. Ins. Co., 5 Mo. Ap. 51; Du Quoin Co. V. Thorwell, 3 Ill. Ap. 394.

5 Goodman V. Pocock, 15 Q. B. 576; Cox V. McLaughlin, 54 Cal. 606; see supra, sec 605.