
    Jonah Atkins vs. County of Barnstable.
    A.n action against a county for the price stipulated in a written contract for worK to be done “ to the acceptance of the county commissioners” is not maintainable without proof that they accepted the work; but on a quantum meruit count the plaintiff may recover such sum as the benefit of the work he has done in compliance with the terms of the contract is reasonably worth to the defendant, not exceeding however the written contract price.
    Contract for building a section of a public highway in Truro. The declaration contained two counts, the first on a written contract, in which it was provided that the work should be done “ to the acceptance of the county commissioners,” and the price of six hundred and thirty dollars should be paid therefor; the second the common count for work and labor done for the defendants. Answer, denial that the work was done “ to the acceptance of the county commissioners,” and averment of payment to the plaintiff of the full value of his work and labor.
    At the trial in the superior court, before Rockwell, J., it was agreed that the defendants had advanced to the plaintiff five hundred dollars, “with the understanding that such payment should not affect his claim, and on their statement that they did not accept the work ; ” and there was evidence of the manner in which the work was performed.
    The plaintiff requested the judge to rule that if he executed his part of the contract according to its provisions, the defendants were bound to accept his work and pay him the price stipulated therein, and cannot defeat this action on the ground of their non-acceptance. But the judge declined so to rule, and instructed the jury as follows: “ On the first count the plaintiff cannot recover unless he shows a substantial acceptance of the work by the county commissioners; but on the second count he may recover if he has satisfied the jury that in good faith he has exactly performed the contract, and made the section of the road according to the stipulations in every particular except that the commissioners did not accept it, he showing that it was entitled to the said acceptance, by the manner in which he had performed the work; and he may recover for the value of the labor and services what they were reasonably worth, not exceeding however the contract price. This action may be maintained, although the contract has not been performed according to its terms, provided the plaintiff has in good faith done what he believed to be a compliance with the terms of the contract, and has rendered a benefit to the defendants; and he may recover such sum as the labor and services were worth, not exceeding the contract price. Under the agreement of the parties concerning the payment of five hundred dollars made to the plaintiff, the recovery, if any, upon the principles above stated, will be for such sum' as the jury may find he reasonably deserves to have, over and above five nundred dollars, but if they find that he does not reasonably deserve to have more than five hundred dollars, the verdict may be for the defendants. If the jury are satisfied that the plaintiff did not intend to perform the stipulations of the contract substantially, and did not so perform them, he cannot recover upon either count.”
    The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.
    
      J. M. Day., for the plaintiff.
    1. Mutuality of obligation being essential to a contract, the defendants were under obligation to accept the work and pay the contract price, if the work was done according to the provisions of the contract. The jury did not find that the plaintiff had not done his work according to the precise terms of the contract, and as under the ruling of the judge they could not render a verdict for the contract price in the absence of a virtual acceptance by the defendants, the plaintiff may have been deprived thereby of the difference between the contract price and the amount which, in the absence of any previously stipulated price, the work done was reasonably worth.
    
      2. The plaintiff’s agreement to complete the work to the defendants’ acceptance was not a condition but a stipulation, the breach of which does not avoid the contract. 2 Pars. Con. 40.
    
      G. Marston, for the defendants.
   Bigelow, C. J.

The instructions were in conformity to the decided cases and in all respects sufficiently favorable to the plaintiff. As to his right to recover on the first count, the agreement was express that the work should be done to the satisfaction' of the county commissioners. The plaintiff was bound to show such acceptance in order to maintain an action on the written contract to recover the agreed price. McCarren v. McNulty, 7 Gray, 139. As to a recovery on the second count, the elements necessary to establish a claim against the defendants and the measure by which the damages were to be assessed were correctly stated by the court. Hayward v. Leonard, 7 Pick. 181. Smith v. Lowell, 8 Pick. 181. Snow v. Ware, 13 Met. 42. Exceptions overruled.  