Jacob Carroll v. Samuel Welch, 26 Tex. 147

WHEELER, C. J. We do not think the objections to the depositions of Dillard, Lewis and Asians, well taken. The certificate' of the officer is a Substantial compliance with the law. (O. & W. Dig., art. 455.) It is different from the ease of Chapman v. Allen. (15 Tex., 278.) The caption of the depositions, which1 is published in the report of that case, was not considered as constituting or as intended to constitute the certificate which the statute requires. That was distinct from the caption, was found in the proper place, and failed in one of the requisites prescribed by the statute.

It was therefore held insufficient. « But there was error in excluding the testimony of the witnesses, Pilgrim and Evans. That they were not carpenters was not aground for wholly excluding then- testimony. It did not necesarily follow that they did not possess competent knowledge of the subject to speak to the question of the character of the work done by the plaintiff.

The weight to which their testimony was entitled would depend upon the intelligence and knowledge of the subject they manifested, and other circumstances which it was for the jury to consider; but there was no sufficient ground for excluding them altogether. This point was decided in the case of Gonzales College v. McHugh. (21 Tex. R., 256.) As the exclusion of the evidence will require a reversal of the judgment, it is only necessary to indicate the rules which regulate the rights of the parties and the amount of recovery to which the plaintiff may be entitled.

The doctrine of the earlier decisions to the effect, that where the contract in cases like the present is entire, the performance by the employee is a condition precedent, and he has no remedy until he has fully performed his part, is not now the recognized doctrine of the court. (Killiard v. Crabtree, 11 Tex.

R., 264; Sedgw. on Meas. of Dam., 215, 2nd edit.) According to the modern decisions, and the decisions of this court, the rule appears to be, that if the employee abandons his contract, the employer shall be charged with only the reasonable worth, or the amount of benefit he has received upon the whole transaction, and in estimating the amount, the contract price cannot be exceeded. The former is allowed to recover for his part performance, its reasonable worth, not to exceed the contract price, and the latter to recoup or reconvene his damages for the breach of contract by the former.

Where the employee is discharged without cause, or is prevented by the employer from completing the performance, he is entitled to recover for the part performed, and the damages he has sustained by reas.on of the breach of contract by the employer. If both parties have broken the contract, or there has been a mutual abandonment of it by both parties, the employee is entitled to recover the reasonable worth of the services he has rendered the employer.

If the plaintiff was thrown out of employment and lost time by the failure of the defendant to furnish the materials according to Ms undertaking, the former is entitled to be compensated the damages he thereby sustained. And for work done by the plaintiff at the instance of the defendant, for which the price was not stipulated, or the contract did not provide, the plaintiff is entitled to be compensated what it is reasonably worth. The judgment is reversed and the cause remanded. Reversed and remanded.