As the law and evidence applicable to the first point made by appellant's counsel are so intimately connected with that of the second point, we will make our references to the first point in our argument on the second point. In reference to the second point made by appellant's counsel--that " the action cannot be maintained in the present form, but should have been brought on the special contract" --we have only to refer to the following cases, decided by this Court: De Boom v. Priestly , 1 Cal. 206; Reynolds v. Jourdan , 6 Cal. 108; Adams v. Pugh , 7 Cal. 150. These cases decide that in a case like the present, a recovery not only may, but must be had (if had at all) on the implied contract.
13 C.J. 601. See, also, Adams v. Pugh, 7 Cal. 150; De Boom v. Priestly, 1 Cal. 206; O'Connor v. Bingley, 26 Cal. 20; Adams v. Burbank, 103 Cal. 646, 37 P. 640; 40 Cyc. 2825, as to modification of contract; 13 C.J. 589. It follows from what we have said that as a matter of law the court committed no error in refusing to accept the contention of appellant, in view of the findings.
It is the general rule that where an employee is, without cause, discharged by his employer during the term of his employment, he may regard the contract as rescinded and sue upon a quantum meruit and recover the reasonable value of his services, as if the special contract of employment had never been made. (2 Ency. of Pl. Pr., 1011, note; Reynolds v. Jourdan, 6 Cal. 108; Adams v. Pugh, 7 Cal. 151; Hartman v. Rogers, 69 Cal. 643, [11 P. 581]; Castagnino v. Balletta, 82 Cal. 250, [23 P. 127].) This he may do when no question could arise as to the validity of the contract, and, independent of the other remedies, he has, namely, to regard the contract as broken and immediately sue for damages for its breach, or to treat the contract as still subsisting, and, at the expiration of the term, bring suit for the entire sum agreed to be paid.
The contract having been broken by the defendant, plaintiff is entitled to the reasonable value of the services rendered. (Adams v. Pugh, 7 Cal. 150; Castagnanno, v. Balletta, 82 Cal. 257; Cox v. McLaughlin, 76 Cal. 60;Hartman v. Rogers, 69 Cal. 643; Whitten v. Sullivan, 96 Cal. 480; Decamp v. Hewett, 11 Rob. (La.) 290.) 34 Am. St. Rep. 568.
It is only necessary to refer to the cases which adjudge this to be the law, -- a course of decision which commenced in this court at an early day in its history, following the rulings of the courts of New York on a statute similar to our own, and which has continued to the present time. (See De Boom v. Priestly , 1 Cal. 206, decided in 1850; Reynolds v. Jourdan , 6 Cal. 108, decided in 1856; Adams v. Pugh , 7 Cal. 151; O'Connor v. Dingley , 26 Cal. 20.) There are many other cases which may be found by reference to the digests, and need not be cited here. The rule is stated as fully settled in O'Connor v. Dingley , 26 Cal. 20, in which case it was held not applicable, for the reason stated in the opinion of the court in that case.
Those were questions of fact; if the evidence was not all in favor of defendant, it was contradictory, and this Court will not review the findings. (Kimball v. Gearhart , 12 Cal. 27; Adams v. Pugh , 7 Cal. 150.) JUDGES: Rhodes, J. Sawyer, J., concurring specially.
Such are but a few of the many cases in which this principle has been recognized and applied, and its applicability to this State and to the peculiar tenure by which water rights are here held, was asserted in Hill v. Smith , 27 Cal. 482, with marked emphasis. (See, also, Ramsay v. Chandler , 3 Cal. 93; Sims v. Smith , 7 Cal. 150; O'Keefe v. Cunningham , 9 Cal. 591; Jones v. Jackson , 9 Cal. 244.) A party may change the point of diversion of water into his ditch, but not to the prejudice of others.