Sec 717

If, however, when his wages are still running, an employee abandon his post, he exposes himself to a suit by his employer for damages if such are incurred by his abandonment. If any portion of his wages be overdue by the occurrence of a period of payment before his giving up his position, such amount, if there be no set-off, may be recovered by him. But he cannot recover for the fraction of a term he wrongfully broke into, e.g., if he leave in the middle of a quarter, his wages being payable quarterly.1 If, in other words, the servant leave wantonly before the expiration of his term of service, and the service contract is for an entirety, then he forfeits his right to wages for the whole term.2 "Where there is an executory contract, and the plaintiff has performed part of it, and wilfully and without legal excuse refuses to perform the rest of it, he cannot recover either in general or special assumpsit."3 "It is the settled law of this state, that when one party contracts to labor for another for a specified term, and leaves the service of the employer before the expiration of such term without any cause proceeding from the employer or 'the act of God,' he cannot maintain an action for the value of the services he has rendered."4 The same distinctions are applicable when he is rightfully dismissed for misconduct.5 - Mere harsh language by the employer will not justify the employee in giving up his place.6 But the closing of his term of service, whether by unjustifiable abandonment on his part, or just dismissal by his employer, precludes him from recovery for the term thus left incomplete.1 It has been argued, however, with great force, that a party who has done his work faithfully through a large fraction of a term, should not be precluded from recovering for such fraction because he has thrown up his employment before the term is complete, no damage being done to the employer.2 And, as we have seen, when a payment is overdue, though the money has not been received, the employee is entitled to recover it, though during the next term he wrong-fully abandons his post, or is rightfully dismissed, if there be no set-off.3

But not when completion is prevented by employee.

1 Supra, sec 605-6; Goodman V. Pocock, 15 Q. B. 576; Canada V. Canada, 6 Cush. 15; see Derby V. Johnson, 21 Vt. 18; Myers V. Baptist Soc., 38 Vt. 614; Moulton V. Trask, 9 Met. 577; Costigan V. R. R., 2 Denio, 612; Hall V. Rnpley, 10 Barr, 231; Stewart V. Walker, 14 Penn. St. 293.

2 Leake, 2d ed. 66; see supra, sec 714.

3 See Cutter V. Powell, 6 T. R. 320; Elderton V. Emmens, 4 C. B. 498, 4 H. L. C. 624; Caden V. Farwell, 98 Mass. 137.

4 Supra, sec 605.

5 Supra, sec 325, 606; infra, sec 747-901. That when there is a hiring for a term and a wrongful dismissal before the close of the term, the employee can recover for the whole term, see, in addition to the cases given above, Miller V. Goddard, 34 Me. 102; Fowler V. Armour, 24 Ala. 194; Pond V. Wyman, 15 Mo. 175; Dunn V. Hereford, 1 Wy. Ter. 206. But a servant dismissed before the expiration of a term contracted for cannot maintain an action to recover wages occurring subsequently to the dismissal. His remedy is a suit for damages. Weed V. Burt, 78 N. Y. 191; White V. Gray, 4 I1L Ap. 228; see Hamill V. Fonte, 51 Md. 419; Alexander V. Americus, 61 Ga. 36.

6 Lamburn V. Cruden, 2 M. & G. 253; Thomas V. Williams, 1 A. & E. 685; Rogers V. Steele, 24 Vt. 513.

7 Dryer V. Lewis, 57 Ala. 551.

1 Supra, sec 325, 596; Leake, 2d ed. 71, citing Taylor V. Laird, 1 H. & N. 266; see Atkin V. Acton, 4 C. & P. 208; Powers V. Wilson, 47 Iowa, 666.

2 Davis V. Maxwell, 12 Met. 286; Reab V. Moore, 19 Johns. 337; Eldridge V. Rowe, 2 Gilm. 91.

3 Robinson, J., in Gill V. Vogler, 52 Md. 666, citing Faxan V. Mansfield, 2 Mass. 147; Stark V. Parker, 2 Pick. 267; Cutler V. Powell, 2 Smith, Lead. Cas. 1.

4 Hough, J., Rowland V. R. R., 73 Mo. 619.

5 See supra, sec 595-6; and see, further, Turner V. Robinson, 5 B. & Ad. 789; Spain V. Arnott, 2 Starke, 227; Ridg-way V. Market Co., 3 Ad. & El. 171; Atkin V. Acton, 4 C. & P. 208; Nichols V. Coolahan, 10 Met. 449; Thayer V. Wadsworth, 19 Pick. 349; Libhart V.

Wood, 1 W. & S. 265; Stewart V. Walker, 14 Penn. St. 293; Byrd V. Boyd, 4 McCord, 246; see Monell V. Burns, 4 Denio, 121; Lynch V. Stone, 4 Denio, 356; Schnerr V. Lamp, 19 Mo. 40; Southmayd V. Ins. Co., 47 Wis. 517. In some states, however, an employee, even after a rightful dismissal, may recover on a quantum meruit for services actually rendered. Lawrence V. Gul-lifer, 38 Me. 532; Champion V. Hartshorn, 9 Conn. 574, and cases cited 2 Ch. on Con. 11th Am. ed. 849; as for what is a rightful dismissal see infra, sec 718. In such cases damages through the employee's breach of contract are to be deducted. McMillan V. Malloy, 10 Neb. 228. That wilful disobedience will justify a dismissal see infra, sec 718. 6 Forsyth V. Hastings, 25 Vt. 646.