Chester W. Olmstead versus Jonathan Beale, 19 Pick. 528

Morton J. The plaintiff cannot recover on his express contract, because he has not executed it on his part, and the performance is a condition precedent to the payment. He cannot recover on a quantum meruit, for the labor he has performed, because an express contract always excludes an implied one in relation to the same matter. These elementary principles admit of no exceptions in favor of any class or description of persons.

Laborers, and especially that most improvident part of them, sailors, may excite sympathy ; but in a government of equal laws, they must be subject to the same rules and principles as the rest of the community ; and a court of justice is almost the only place where sympathy should have no influence. The above doctrine of the law of contracts prevails in all c vilized countries ; and is supported by an unbroken chain of decisions in England, our sister States and our own. From the first volume of Tyng to the last of Pickering, adjudications will be found recognizing, but none questioning the doctrine. Faxon v.

Mansfield, 2 Mass. R. 147; Taft v. Montague, 14 Mass. R. 282; Phelps v. Sheldon, 13 Pick. 50. The case of Stark v. Parker, 2 Pick. 267, [see 2d ed. 275, 276, notes,] is exactly in point, and is not distinguishable from the case at bar by the slightest shade of difference. That case was well considered, has never been doubted, but very often recognized as unquestioned law. Moses v. Stevens, 2 Pick. 335; Willington v. West Boylston, 4 Pick. 103. If there be any case which seems to conflict with it, it is Britton v. Turner, 5 N. Hamp. R. 485.

This probably may be reconciled with it, but if not, we can have no hesitancy in adhering to our own decisions, supported as they are by principle and a long series of adjudications. The cases of Hayward v. Leonard, 7 Pick. 181, and Smith v. The First Congr. Meetinghouse in Lowell, 8 Pick. 178, are neither incompatible with, nor exceptions to, the rule. It will be found in these and other similar cases, that there was an express or implied assent to the deviations from the contract, or a substantial performance of it.

The equitable principle which governs them, and which itself is of recent introduction, only extends to unimportant accidental and unintentional deviations, which, from the differences of opinion that so often exist in relation to the exact requisitions in the details of a special contract, had become indispensable to the administration of justice in such cases. But where there is an important and voluntary deviation or omission from the contract, the doctrine of Faxon v. Mansfield will apply, and the contractor can have no remedy for the materials furnished and the services performed.

Exceptions overruled, and judgment on the verdict