
    Elliott vs. Wilkinson.
    A agreed to furnish the materials and build B a goo'd chimney for a stipulated sum, and in case he did not build a good chimney, was to have nothing. A furnished the materials and erected a chimney, but it was so unskilfully done, that B was compelled to have, it taken down and rebuilt; in doing which, he used the materials furnished by A: Held, that A could recover of B the value of the materials, notwithstanding the contract.
    When the time for the performance of a special contract has expired, which has been partly performed in money or labor, he who has partly performed, may recover of the party benefited, the money, or so much as he deserved to Jiave for his labor.
    A reference of a ma tter in dispute to arbitrators, pending the suit, which has nevert een gone into, can have no effect upon the suit.
    On the 14th of October, 1833, James Wilkinson obtained a judgment against Stephen Elliott, before a justice of the peace, for eight dollars and costs; In December afterwards, Elliott applied to the circuit court, and brought the cause up by certiorari, alleging, “that when ¿he judgment was rendered he had appealed from it to the county court; that before the appeal was carried up, the parties agreed to arbitrate the matter, and entered into a written agreement to that effect; that said arbitration was not gone into by the default of Wilkinson.” The bill of exceptions shows, that when the cause was called for trial in the circuit court, Elliott, by his counsel, moved the court to quash the execution, on the ground that the judgment of the justice had been annulled; andin support of his motion offered in evidence the arbitration agreement, reciting in substance, that the parties had agreed to compromise said suit, by reference to Gideon Hogh and others, and they bound themselves to abide by their award, &c. and offered to prove by witnesses, that he, the defendant, was ready to have the arbitration go into effect, but plaintiff refused. Plaintiff protested, that he also was ready to carry the agreement into effect, but that it was defendant’s fault that the matter was not settled by the referees, but objected to the motion. The court overruled the motion, and decided the cause should be tried; to which opinion of the court an exception was taken, and the agreement to arbitrate set forth.
    On the trial of the cause in the circuit court, it was found Wilkinson undertook to build a stone chimney for Elliott, for which Elliott was to pay him fifteen dollars— ten in a cow, and five in cash at Christmas, 1833. It was proved by several witnesses, they heard Wilkinson say, that if he did not build a good chimney, he was to have nothing for it. Ragsdale, a witness, proved, that he was employed by Elliott to pull down the chimney built by Wilkinson, and rebuild it. He done so. The chimney built by Wilkinson was not built in a workman-like manner. The back and side walls around the fireplace were too thin. The fireplace was too shallow for the size of the house, the wall of the chimney was not plumb or square, the flue was too small, and the whole work badly done. Ragsdale further proved, that Elliott had applied to him to build the chimney in the first instance; that he would not undertake it for any price; and that he rebuilt the chimney out of the same rock Wilkinson had procured, with six additional loads, for which labor Elliott paid him twelve dollars and fifty cents. He was hired at one dollar and fifty cents per day, and had he worked by the job he would have charged twenty dollars. Wilkinson laid a hearth for Elliott, which was a job independent of the chimney, for whieh he charged one dollar.
    The court charged the jury, “that if they should be of opinion from the evidence, that the plaintiff was not entitled to recover the amount agreed upon between him and defendant for building the chimney, because of plaintiff’s failure to build a good chimney, or such an one as he contracted to build; still, if they should be of opinion that the defendant was benefited to any amount, by the plaintiff’s ■labor' in and about said chimney, the plaintiff was entitled to compensation to the extent of the benefit.”
    The jury found nine dollars damages; a new trial was moved for and refused, and the defendant prosecuted an appeal in the nature of a writ of error to this .court.
    
      M. ■ Taul, for plaintiff in error.
    The court will not undertake to mould or modify men’s ■contracts. Wilkinson represented himself to Elliott to be a stone mason, and made a bargain with him, that if he did- not • build him a good chimney, he was not to have any thing. He did not build him a good chimney — ergo, according to his contract, he was not entitled to any thing. Will the law give him what his contract would not? Surely not. It was competent for the .parties to make their contract in that way. If Wilkinson bad been prevented by the act of God from finishing the work, he might have recovered pro tanto. But when, owing to his want of skill, the chimney had to be thrown down and rebuilt, neither his contract or justice would say, he ought to be paid any thing.
    This case is not like the case of Stump and Cox vs. Estell, reported in Peck. Estell had received advancements from Stump and Cox for cotton. He refused to deliver the cotton, and also refused to account for the advancements, because Stump and Cox had not fully complied with their contract, although he had afterwards paid part for the sugar and salt, thereby admitting himself bound to pay for the residue. It was, therefore, well decided, that he (Estell)- should pay for the sugar and salt which he had received. Nor is this case like any other which has been decided upon the principle laid down in the case of Stump and Cox vs. Estell. A undertakes to work for B for six or twelve months, for which B is to pay him at the end of the term, if he works faithfully, one dollar; if he does not work the whole time he is not to have any thing. A works one month and quits without the consent of B: can he receive for the month’s work? Surely not.
    I take it, therefore, that there is no principle of law to justify the charge of the court. The judge told the jury, in substance, that although the plaintiff might not be entitled to recover according to his contract, yet the law would give him something any how. A man stipulates, that for doing a particular service, in a particular way, he will be entitled to compensation to a certain amount; if not, he will not receive any compensation. He fails to perform the service. Can he then say, the law is wiser than I am, and will give me compensation, where, by my contract, I am not entitled?
    The case is a small one, but in it are involved principles of great magnitude. It is certainly competent for men to make conditional contracts. It is not against any law, or public policy to do so. If there had been no special agreement between the parties, perhaps the charge of the court might have been sustained. But as there was a special agreement, Wilkinson must recover upon it, or no t at all. Suppose Elliott had agreed to give him one dollar instead of fifteen, for building him a good stone chimney, which he had built accordingly, could Elliott have claimed an abatement, if the work had not been worth that amount, or the one-fourth of it? Surely not. The rule of law ought to work both ways.
    
      James Campbell, for defendant in error.
    It is believed there was no error in this decision of the court. Neither party were bound to arbitrate, though they had agreed to do so. 3 Yer. Rep. 139. They might revoke or refuse to comply with it, at any time before the arbitration was gone into. But if the agreement was binding and irrevocable, it could not be'taken advantage of by motion; this could only be done .by a defence in the nature of a plea puis clarein continuance.
    
      2. The defendant moved for a new trial, which was refused. The-whole of the testimony is not set out, and the court will presume that the evidence justified the verdict.
    3. The court charged, that if Wilkinson contracted to build a chimney for Elliott, and failed to build a good chimney, or such an one as he contracted to build; yet if defendant was benefited by the labor of plaintiff, plaintiff could recover to the extent of that benefit. This last charge is in conformity with the settled adjudications of this court. Stump and Cox vs. Estell, Peck’s Reports 175.
   Catron, C. J.

delivered the opinion of the court.

-Was the charge of the court correct?

It must not be overlooked, that this proceeding was had before a justice of the peace, and the demand must be treated as in equity, and stand on a foot the most favorable for the plaintiff. "

The rule laid down in Erwin vs. Bell, 1 Yer. Rep. 85; in Stump and Cox vs. Estell, Peck’s Pep. 175; in Farris vs. Icomb, and Chilton and Inett’s ex’rs vs. Harrison (in manuscript Sparta, 1834), is, that when a special contract exists, and one party has partly performed, in money or labor, and the time or opportunity for full performance has gone by, he who has been benefited shall refund to that amount; and if he fail, he who has partly performed may abandon the special agreement, if it even-be a sealed instrument, and recover so much as he deserved to have. This rule is too well settled to be called in question, and was appropriately applied by the circuit judge to the facts in the case before the court.

The submission to an arbitration, which was not gone into, could have no effect, is an objection without merits, and must be disregarded.

The judgment of the circuit court will be affirmed.

Judgment affirmed.  