
    Thomas Costello vs. William Cady.
    The plaintiff agreed with the defendant to take his pay, for work that he had already done for the defendant, in wood, then lying on the defendant’s land. On demand, the defendant declined to point out to the plaintiff what wood to take, but told him to take enough to satisfy himself. Held, that the agreement was no bar to an action for the price of the work.
    Contract for labor in cutting wood. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon the following agreed statement of. facts:
    “ The plaintiff performed the labor set out in the bill of particulars annexed to his declaration. After the work was done the defendant enlisted in the army, and, before he left the state made a final arrangement with the plaintiff to take his pay out of the very wood which he had cut, and which was then lying upon the defendant’s land, where the plaintiff was to take it at such time or times as suited his convenience. To this the plaintiff assented, and the defendant entered the army. The defendant, when he left the state, appointed Joseph Brown, as his agent, to manage his affairs in his absence. After the defendant left, the plaintiff applied to Brown for the wood, requesting him to go and point out to him what wood to take, but Brown simply told him to go and help himself, and did not go and point it out to the plaintiff. The plaintiff did not go and get the wood, nor was the wood delivered to him. On the defendant's return, the plaintiff demanded payment of his bill. The defendant refused to pay the bill in cash, but told the plaintiff to go and get wood enough to satisfy himself, which the plaintiff declined to do.”
    A. M. Copeland, for the plaintiff.
    
      G. H. Knapp Sf E. H. Lathrop, for the defendant.
   By the Court.

The agreement made after the work w»s done, that the price should be paid in wood, was executory. There can be no ground for setting up such an agreement as i bar to an action for the price, especially after a demand of til n wood and a neglect to deliver it.

Judgment for the plaintiff.  