
    
      Joseph P. Summer vs. Daniel Dewalt.
    
    
      A employed B to build for bim a saw-mill complete, upon the best plan and of the best materials, and likewise the running-gear of a grist-mill, of like good materials; A to furnish the mill rocks; the whole to be finished by a specified time and for a stipulated price. The order in which the differentportions of the work were to be completed was not prescribed, and when B was ready to put up the rocks to the grist-mill, and required them to be furnished, but a small portion of the saw-mill remained to be finished, which might have been done within the terms of the covenant, but for the failure in furnishing the rocks. Held, that the first default having been on A’s part, in failing to furnish the mill-rocks, he could not resist B’s right to recover, because the whole work was not finished within the time; and, having accepted and used a considerable portion of the work, B was entitled to recover pro tanto.
    
    
      Before Earle, J., Newberry, Fall Term, 1842.
    This was an action of covenant on an agreement by which the plaintiff agreed to build the defendant a sawmill, complete, upon the best plan and of the best materials, and likewise to build the running-gear of a gristmill, of like good materials, the defendant to furnish the mill-rocks, and to have the whole finished by the first of November, 1839 ; for which the defendant agreed to pay a stipulated price. At the time appointed the saw-mill was finished, except that part of the roof was not covered. But it appeared, in evidence, that the plaintiff was likewise prevented from finishing the grist-mill by the failure of the defendant to furnish the mill rocks when demanded, and for which the plaintiff had all the other work completely ready for putting up the stones. This occurred in October, when the plaintiff made the demand, and after he had tendered the saw-mill to the defendant, who refused to accept it, on account of the roof, and more important objections. The plaintiff proposed that, if defendant would take the mill and saw plank for the purpose, he would immediately finish the roof. This was refused; and, as the defendant failed to furnish the rocks, the plaintiff quit work, and brought his action after the first of November. Subsequently he finished the roof, and the defendant employed other workmen to put up the rocks for the grist-mill, using all the work which had been prepared by the plaintiff. It was clear that the defendant had accepted the grist-mill, and assumed the control of it. From this, as well as from the fact that the failure of the plaintiff to finish the mills according to the contract, was owing to-the neglect of the defendant to furnish the rocks, it did not lie in his mouth to say that the action was prematurely brought. His Honor refused a motion for non-suit on that ground, and sent the case to the jury. The objection to the plan reláted only to the saw-mill, of which the materials and workmanship were excellent. As to the extent of the defect, there was the greatest possible difference of opinion amongst the witnesses ; whilst some thought the defect rendered the mill of no value, others regarded it of small importance, and might be remedied at a trifling expense. To the work for the grist-mill there was no objection, except a minute portion of sap on one of the sticks of timber used in the water-wheel. As this had been accepted and used, his Honor instructed the jury that they might apportion the damages ; which they did, and found a verdict, reducing the plaintiff’s recovery quite as low as the evidence would warrant.
    
      Grounds of Appeal.
    
    1st. That the roof of the saw-mill house was not finished at the time of the commencement of the suit; and this was proven by the plaintiff’s witnesses.
    2d. The testimony of the plaintiff’s witnesses showed that the mills were not built upon the best possible plan, according to the agreement.
   Curia, per

Earle, J.

The first ground of appeal was urged on the trial below on a motion for non-suit, and was overruled. This court is- of opinion that it was properly overruled, and that it cannot avail the defendant here, either for non-suit or new trial. The first default was clearly proved to have been on the part of the defendant, in not furnishing the mill rocks for the grist-mill, when he received notice from the plaintiff that he was ready to put them up, and was waiting for them. At that time the saw-mill was finished, except a small part of the roof. No doubt all the work which the plaintiff undertook to do was required to be completed, according lo the terms of the covenant, before he was entitled to demand payment of the price stipulated. But the order in which he should complete the different portions of the work was not prescribed ; and when the plaintiff was ready to put up the rocks, and required them to be furnished, it was no sufficient answer on the part of the defendant to say, “ the roof of the saw-mill is not finishedit would have been enough for the plaintiff to furnish the whole work by the first of November, as he might have done had the rocks been furnished.

The evidence in regard to the plan, the quality of the work, and the materials, was fairly submitted, with instructions which are not specially excepted to.

The second ground of appeal is, that the mills were proved not to have been built upon the best possible plan. And the argument is, that in cases of covenant like this, the jury cannot apportion the damages. The objection to the plan related only to the saw-mill, and the proof was positive that the defendant had accepted the work done on the grist-mill. It would, I think, be a new principle, which would deprive the plaintiff of his right to recover pro tanto, whatever might be the extent of the defects in regard to the saw-mill, provided the declaration is so drawn as to meet the case made. It has not been brought to the view of the court, either on the trial below or in the argument here. We ought, therefore, to conclude that there was no defect in. the plaintiff’s pleading. The case has been likened, in the argument, to contracts for seamen’s wages, and other personal services, and of affreightment, where the freight is payáble on the delivery of the goods at a particular place. But if the count is properly drawn, the rules which govern the plaintiff’s right to recover are the same which apply to all contracts for services and work, whether with or without seal. The defendant, having first failed to perform his part, cannot resist the recovery, because the whole work was not finished within the time; and, having accepted and used a considerable portion of the plaintiff’s work, he cannot deny the plaintiff’s right to recover pro tanto. Motion refused.

Fair and Summer for motion; Caldwell and Cald-Well, contra.

Richardson, O’Neall, Evans, Butler, and Wardlaw, JJ., concurred.  