
    Hewlett, Schwarz & Co. v. Alexander.
    
      Action on Common Count for Work and Labor, ivith Special Count on Contractor's Lien.
    
    1. Breach of contract, and waiver thereof; rescission. — Under a contract by which plaintiff undertook to furnish materials and build a house for defendant at a specified price, to be paid as the work progressed on the certified estimate of the supervising architect, the defendant’s failure to make partial payments on the certified estimates is a breach of the contract, but is waived by plaintiff’s consent to wait for the money, and continuing to perform the work; and if the plaintiff himself violates the stipulations of the contract by furnishing materials and work of an inferior quality, and fails to correct the resulting defects, after repeated requests and promises to do so, the defendant may-discharge him, and treat the contract, as annulled and rescinded, notwithstanding the breaches on his part which had been thus waived.
    2. Contract for construction of building; completion by owner, on default of contractor. — On a contract for furnishing the materials and building a house, containing a stipulation that, on default by the contractor, and after notice to him, the owner might himself complete the building, deducting the expenses from the stipulated price, or the unpaid residue thereof, and accounting to the contractor only for the excess; if the expenses incurred in completing the house exceed the balance due to the contractor, no action lies in his favor.
    Appeal from the City Court of Birmingham.
    Tried before the Hon. H. A. Shabpe. ,
    This action was brought by John Gr. Alexander, against the appellants as partners, to recover an alleged balance due for materials furnished and work done by plaintiff in erecting a large brick building for defendants in the city-of Birmingham; and was commenced on the 21st October, 1887. The complaint contained the common count for materials furnished and work and labor done, and a special count which sought to enforce a contractor’s lien on the property. The defendants pleaded the general issue, payment, set-off, and recoupment of damages; and issue was joined on these several pleas. The cause being submitted to the court without a jury, judgment was rendered for the plaintiff, for $958.20, and a statutory lien on the building declared in his favor. The defendants excepted to the decision and judgment of the court, and they here assign it as error. The material facts, as found by this court, are stated in the opinion.
    
      Eeagin & Wilkerson, for appellants,
    cited Bish. Contracts, § 829; Brigham v. Carlisle, 78 Ala. 243; 30 N. W. Rep. 446; Smith v. Brady, 17 N. Y. 179, or 72 Amer. Dec. 442; English v. Wilson, 34 Ala. 201; Allen v. McKibben, 5 Micb. 455; 26 Micb. 473; 7 Pick 181, or 19 Amer. Dec. 268, and notes; Bragg v. Bradford, 33 Yt. 35; Dyer v. Jones, 8 Yt. 205.
    Mountjoy & Tomlinson, contra,
    
    cited Canal Co. v. Cordon, 6 Wall. 561; Railroad Co. v. Howard, 13 How. 343; U. S. v. Peck, 102 U. S. (12 Otto), 64.
   McCLELLAN, J.

This case was tried by tbe judge below, without jury, under section 12 of tbe act of December 9, 1884, establishing tbe City Court of Birmingham, which makes it our duty on appeal to review “tbe conclusions and judgment of tbe (city) court on the evidence.” Upon a consideration of tbe whole evidence, we are led by a preponderance of testimony to tbe following conclusions: 1. That appellants committed breaches of their contract on tbe 1st and 8th days of October, 1887, in failing to pay tbe estimates of work done and materials furnished by appellee, as certified to them by tbe supervising architect. 2. That tbe breach of October 1st was waived by appellee’s consent to wait for tbe money until Hewlett’s return, and bis continuing to perform tbe contract. 3. That the breach of October 8th was waived by appellee’s tacit assent to further delay in tbe payment of tbe estimates, and continued performance of tbe contract. 4. That there were breaches of tbe contract on tbe part of appellee, prior to October 1st, with respect to tbe kind and quantity of material supplied by him, tbe manner of its use, and tbe character of work done in tbe construction of tbe bouse. 5. That these breaches of tbe contract were not waived by appellants, but that they at all times insisted on appellee’s remedying tbe defects resulting from them, and upon bis final refusal to do so- — after having all the while previously promised to correct them — they discharged him, and annulled the contract, as by stipulations in tbe contract itself they were authorized to do, upon bis failure and refusal to comply with its terms.

Tbe contract being thus rightfully terminated before tbe completion of tbe building, tbe rights and interests of tbe parties are to be determined in accordance with tbe stipulations entered into by them with respect to tbis contingency. These stipulations are as follows: Upon the termination of the contract “all claim of the contractor, his executors, administrators; or assigns shall cease; and the proprietor may provide materials and workmen sufficient to complete the said works, after giving forty-eight hours notice, in writing, directed and delivered to the contractor, or at his residence, or place of business; and the expense of the notice and the completing of the various works will be deducted from the amount of contract, or any part of it, due or to become due to the contractor......But, if any balance on the amount of this contract remains after completing in respect to the work done during the time of the defaulting contractor, the same shall belong to the persons legally representing him; but the proprietor shall not be liable or accountable to them in any way for the manner in which he may have gotten the work completed.”

The appellants completed the building, under the right to do so given by these provisions of the contract, at an aggregate outlay, including payments made to appellee and others before the termination of the contract, of $21,178.50. It was satisfaclorily shown that the expenditure of this sum, even with some modifications of the original plans which lessened the cost of the work, was reasonable and necessary. The contract price fixed in the original agreement was $19,514. It was claimed by appellee that the cost of rebuilding a part of the wall, which gave way without fault of his, should be added to this sum. This item was $242, and allowing his claim in that particular the total contract price was $19,756. It is apparent, therefore, that there was no balance of the amount which was due, or could under any circumstances have become due to appellee, remaining after the completion of the work by appellants. On the contrary, the payments by the proprietors exceeded to the extent of $1,422.50 the greatest sum that appellee would have been entitled to under the contract had he fully performed it. On this state of proof, if we are to give any effect to the language of the contract — if the court is to be governed at all by the agreement which the parties themselves made, and as to the true intent and meaning of which there can be no doubt — the plaintiff below was not entitled to recover in this action.

The judgment below must be reversed, and the cause remanded,  