This section contains the nature of the case and procedural background.

P made a contract with D to sink a shaft 8 by 11 feet, down to the 'ledge,' and timber the same up; P to furnish everything, and to be paid $10 per foot. P claimed that they sunk the shaft to the 'ledge,' and had timbered it to within 8 or 10 inches of the 'ledge,' when they were stopped in their work. P claimed the right to recover for the work actually done by them under the quantum meruit, on the ground that they were prevented by D, without fault on their part, from performing the contract. The case was submitted to the jury by the circuit judge upon this theory, and the jury was instructed as follows: 'It is the law that, if an employer terminates a contract without any fault on the part of the employee or contractor, then the employee or contractor may sue upon the contract to recover damages, or he may sue in assumpsit upon the common counts, as they are called,--the quantum meruit,--to recover what his services were worth. That does not mean what they were worth to the employer. It is the fair value; that is, the value of work and labor. P got the verdict and it was affirmed and D appealed.

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