
    Wolf, Carpenter & Angel v. Gerr et al.
    1. Contract: breach of: damages. The party who has failed to perform his contract in full may recover compensation for the part performed, less the damages occasioned by his failure.
    2. -: -: 'pleading. . In an action for damages against one charged with breach of contract, the party seeking relief has the burden to establish the breach and loss occasioned thereby, and the defendant is not required to allege that the plaintiff has suffered no damage.
    
      Appeal from Mills Circuit Cou/rt.
    
    Friday, June 9.
    The plaintiffs claim of defendants $300, the amount of an accepted draft paid for their use, and the further sum of $250 advanced to them.
    The answer admits the allegations of the pétition, and in the second count, by way of counter-claim, alleges in substance that, pursuant to a printed and written contract entered into between plaintiffs and defendants, the defendants did grading upon the Burlington & Missouri Eiver Eailroad, on section fifty-six west of Áfton; that they did not complete said section, but quit work on the'18th day of July, and that plaintiffs have paid them only up to, and including, the 30th day of June; that during the month of July they removed 2180 cubic yards of earth, for which they were to receive, under the contract, 40 cents per cubic yard, amounting to $872; that the engineer in charge of said work refused to give them an estimate for the work done in July; that by the terms of the contract it was agreed that.ten per cent upon the.contract price should be reserved as liquidated damages, in case defendants failed to complete said contract, and that plaintiffs have retained. that sum; that against -the sum which defendants claim, plaintiffs are entitled to a credit.of $300 for the draft in petition named, and. to a further credit for the $250 named in the petition, leaving due defendants a balance of $322, for which they ask judgment.
    
      The portion of the contract referred to in the petition, material to the present inquiry, is as follows: “ The party of the second part agrees that, as the work progresses, monthly estimates shall be made of the work done and material delivered, and upon the presentation of such estimate, certified by the chief engineer, they will pay to the parties of the first part the amount of such estimates, less ten per cent, which percentage will be retained as security for the faithful completion of this contract.
    “ The parties of the first part agree to build and construct all road crossings, gradings for depot grounds, and make all changes of ci’eek channels, and do all Work ordered by the engineer at the same prices as before stated. It is further agreed, that if, in the opinion of the said engineer, the said parties of the first part shall neglect or refuse to prosecute the work embraced in this contract with sufficient energy to insure its completion within the time specified, or violate any of its provisions, the said" engineer shall inform the parties of such part of such neglect or violation, and state the duties expected of them; and if said parties of the first part shall not immediately comply with the requirements so made, then the full power and authority is hereby vested in the party of the second part, either to place such force of men on said work as will, in the judgment of the engineer, secure the completion of said work in the time specified in this contract, deducting the expenses so incurred from the amounts agreed to be paid to the parties of the first part under this contract, or to declare this contract forfeited; and on such declaration being given in writing, through said engineer, this contract shall cease and determine immediately, and the party of the second part may forever retain the reserved percentage on account of the consideration, which shall be considered and treated as liquidated damages, which they may have sustained, by reason of the forfeiture of this contract. It is further agreed that whenever, in the opinion of the chief engineer, this contract shall be completely performed on the part of the parties of the first part, and the said engineer shall certify the same, together with his estimate as aforesaid, the said parties of the second part shall, within twenty days after the receipt of such certificate, pay to the party of the first part the sum which, according to this contract, may be due. It is further agreed that time is the essence of this contract.”
    The plaintiffs’ demurrer to this answer was sustained upon the following grounds: “ 5th. The right of defendants to recover for work done on section 56 is governed, controlled and limited by and to the terms of the contract, and that said contract shows that they should not complain therewith. 6th. Said contract does not aver that plaintiffs have not sustained damage by reason of the non-performance of the contract relied on. The amount defendants can recover under this count being the reasonable value of the work done, less the amount already paid by plaintiffs, and the amount of damages to which plaintiffs are entitled, by reason of the non-performance of the contract by defendants. “7th. Said count assigns no reason or excuse whatever for his breach of contract.”
    The remaining causes of demurrer were overruled, and they are not set out in the abstract. Defendants appeal.
    
      Hale dk Stone, for appellants.
    No argument for appellee on file,
   Day, J.

The count of the answer demurred to sets up a good cause of action against the plaintiff. It is now the set-tied doctrine' in this State that a party who has failed to perform in full his contract may recover compensation for the part performed, less the damages occasioned by his failure. Pixler v. Nichols, 8 Iowa, 106; McClay v. Hedge, 18 Id., 66; Jemmison v. Gray, 29 Id., 539. The answer in this case alleges that defendants removed 2180 cubic yards of earth, for which they were to have, under their contract, the sum of $872, and that they have been paid thereon only the sum of $550.

The contract provides two courses, either of which the plaintiffs may pursue, in the event of the defendants’ failing to prosecute the work with sufficient energy to insure its completion by the time agreed upon. They may place such force of men upon the work as will in the'opinion of the engineer secure the completion of the work in the time specified in the contract, and deduct the expenses so incurred from the amount agreed to be paid defendants; or they may declare the contract forfeited and retain the reserved percentage of ten per cent as liquidated damages. But in either ease the defendants are entitled to pay for what they do, less the damages which result from their failure, whether that damage be the ten per cent reserve, or what plaintiffs may pay to complete the contract. It was not necessary that defendants should assign any reason or excuse for the breach of the contract. They are entitled to pay for what they do, less damages occasioned, without reference to the cause of the breach of contract. Nor was it necessary that defendants should aver that plaintiffs had sustained no damage by the breach of the agreement. If plaintiffs have sustained damage, they must aver and prove that fact. The law does not cast upon defendants the burden of proving a negative of this character. The demurrer should have been overruled.

Beversed, held that a county judge is authorized to receive money paid  