
    Robert B. Bassett vs. Greenleaf C. Sanborn & another.
    A. agreed under seal to build a house for B., but the work not being completed at the stipulated time, B. directed A. to discontinue, and the contract was not completed. It was held, nevertheless, that A. might recover upon the common counts for work and labor, &c., deducting all damages to B. from the failure of A. to comply with the contract.
    The fact that payment was to have been in part by real estate, will not prevent A. from recovering on the common counts, especially as the true value of the land was not over estimated in the original contract, and B. had refused to convey it in part payment for the work actually performed.
    By the original contract, A. was to be paid in thirty days after the completion of the work; held, that he might recover interest in this action after thirty days from the time he might have completed it, but for the interference of B.
    A conditional acceptance by a debtor of an order on him by a creditor, in favor of a third party, does not operate as a payment, especially if it be afterwards given up to the debtor by such third party unpaid.
    This was an action of debt, to recover on the common counts, for materials furnished and for. work and labor done by the plaintiff, in the erection of a frame dwelling house on land belonging to the defendants in Boxbury. The writ contained also a special count in debt.
    The case was referred to an auditor by a rule of court, “ his decision on the facts to be final.” The following statement is condensed from the auditor’s report.
    After the opening, by the plaintiff, certain objections to his right of recovery were filed by the defendants, of which the following were the most material.
    “ An objection to any evidence under the special count in debt, because the plaintiff seeks thereby to recover unliqui-dated damages under a contract under seal; also to any evidence under the common counts for work and labor, and materials done and furnished, under special contracts which remain open, unrescinded, and unperformed.”
    An agreement under seal was executed in duplicate by the parties, bearing date November 20,1845. By this agreement, the plaintiff promised and agreed with the defendants, to furnish all the materials and do all the work, “ except digging and stoning the cellar and building up the brick chimneys,” necessary for the thorough and complete erection, on land of the defendants in Roxbury, of a frame dwelling-house, which was to be built according to plans and specifications referred to in the agreement. The agreement provided that the defendants “ shall dig and stone the cellar, and build up the brick chimneys, and find all the materials for the same.” The plaintiff was to have, for the work and materials, $3,200, to be paid by instalments as the work advanced.
    The plaintiff was to have until the 1st of May, 1846, and no longer, to complete the house according to the terms of the contract; but the contract did not specify when the defendants should have the cellar dug and stoned, although the plaintiff could not commence the erection of the house until that was done. The plaintiff prepared his frame and other stock, and carried them from Boston to Roxbury by the middle of March; but the digging and stoning of the cellar were not completed by the defendants until some time between the 15th and 20th of April.
    It was wholly impossible for the plaintiff to complete the house between the time when the foundation was ready and the 1st day of May, the time fixed by the contract for its completion. Accordingly, on the 30th of April, 1846, an agreement between the parties under seal was indorsed on the original contract, extending the time for the completion of the contract until the 20th day of June then next. At the same time, an additional contract was entered into between the parties for the erection, by the plaintiff, of an observatory on the house, for which the defendants agreed to pay him the further sum of one hundred and fifty dollars, of which one hundred and thirty were paid him when the contract was made.
    From the time when the plaintiff commenced the erection of the house, he prosecuted the work with ordinary and reasonable diligence until the 20th of the ensuing June, having, during the whole time, a gang averaging eight hands at work on the premises, and being himself there about two hours daily, seeing to the progress of the work. It would have been possible for the plaintiff to complete the house on the 20th of June, by putting on an extra number of hands ; but there were as many men employed as could work to advantage, and as many as are usually employed in the erection of such a house.
    On the 20th of June, the plaintiff was prosecuting his work on the house, having eight men employed thereon, when one of the defendants went on the premises and took possession of the house, directing the plaintiff’s men to quit, saying the time was up and he was going to have the work stopped; and, on the same day, the defendants left a written notice at the plaintiff’s house in Boston, the contents of which were proved to be in substance, that the plaintiff’s contract had expired, and that the defendants did not want or would not have any more of his work on the house. The plaintiff’s men left the premises, as directed by the defendants, and no work was subsequently done by the plaintiff on the house, nor was there any evidence that he subsequently offered to complete his contract.
    No evidence was offered by the defendants to show that any notice of any kind, other than that of June 20, either before or after that date, was given by them to the plaintiff. The defendants took the house as it was on the 20th of June, and finished it at their own expense. The work left unfinished might, in the exercise of reasonable and ordinary diligence, have been completed within three weeks.
    The size and general plan of the house conformed to the specifications referred to in the contract, but in some details there were variations from the specifications. There was no evidence, other than the fact of the variations themselves, tending to show that these departures from the specifications were the result of any intent on the part of the plaintiff, wil-fully to wrong the defendants, and skilful mechanics, who were produced as witnesses, differed in the opinions expressed by them as to the effect of these variations upon the permanent strength and durability of the structure and its substantial value. It appeared in evidence that one of the defendants, who were themselves builders, visited the premises oftener than once a week, while the plaintiff was going on with the work, and, when there, was in, upon, and around the house. The only instances in which it was shown that any dissatisfaction was expressed by the defendants, while the work was in progress, were that, while the plaintiff's men were at work getting out the frame in Boston, one of the defendants complained to. the plaintiff’s foreman, that the floor joists, were too far apart, and that they should have been tenoned instead of being gained; that the foreman mentioned it to the plaintiff, who said he was sorry that they were not placed nearer to centres, and, after the house was raised, the same defendant complained to the same foreman that the studs were too far apart.
    The auditor’s report on the above facts was “that up to June 20, the plaintiff was going on with his work, with an honest intention to go by the contract, and that, so far as he had then proceeded, there had been a substantial execution of it, although there were deviations as to some particulars not the consequence of fraud or gross negligence, and which were of such a character that skilful and experienced mechanics differ as to their effect upon the permanent strength and substantial value of the structure; that the materials furnished and the work done are valuable and beneficial to the defendants, and that the plaintiff is entitled to recover on a quantum meruit for the work and labor done, and on a quantum valebant for the materials furnished; and, in determining the amount which he is so entitled to recover, I have charged the defendants with the prices according to the two contracts, and have credited them with the payment made by them to the plaintiff, and with a further sum sufficient to cover their reasonable expenses incurred after June 20, in the completion of the house according to the contract, and to indemnify them for the defects in materials furnished, and for any diminution in the permanent value of the house, by reason of deviations by the plaintiff from the terms of the contract.
    By the original contract, the balance due to the plaintiff was to be settled at the expiration of thirty days from the time when the building shall be completed, and I have found that the defendants might have completed the building by the 11th day of July, I have considered that the plaintiff is entitled to interest on the balance due him, from the expiration of thirty days after July 11, to the date of the plaintiff’s writ, and I have charged the defendants in said account with interest accordingly.
    The result of the account so stated shows the amount due from the defendants to the plaintiff, at the date of his writ, to have been thirteen hundred and fifty-three dollars and twenty-six cents. ($1,353.26.)
    The defendants claimed to have allowed them the amount of a certain order drawn on them by Bassett, desiring them to pay G. N. Black & Co., or order, nine hundred dollars, when the house I am now building for you under contract, dated November 20, 1845, is finished according to said contract.’
    The said order was accepted by the defendants, who agreed ‘ to pay the same when the said Bassett has finished' the house according to the terms of the contract.’
    And a receipt was indorsed on the original contract of nine hundred dollars, by accepting an order in favor of G. N Black & Co. No payment has ever been made on said acceptance, and G. N. Black & Co., at the hearing before me, tendered the said acceptance to the defendants ; but the defendants did not accept said tender, and said acceptance was surrendered to me to be placed on the files of the court for the defendants’ use, and the same has been delivered by me to the clerk of the court, and has been filed by him with the papers in the case. I disallowed the amount of their acceptance as a credit to the defendants.”
    
      M. S. Clarke., for the plaintiff.
    
      E. Blake, for the defendants.
   Dewey, J.

The plaintiff seeks to recover, under a declaration containing the common counts for work and labor done and materials furnished, damages for his services and expenditures in the construction of a dwelling-house on land belonging to the defendants, and which services were performed under a special contract under seal.

The case presented is not one where the stipulations of the plaintiff have been fully performed, and where the party might put Ms case upon the doctrine, that, however special the contract, yet if the terms on Ms part have been fully performed, and nothing remains to be done but the payment of a stipulated sum of money, such payment may be enforced under the general counts.

The plaintiff contends, that' the present case falls within the principle of the cases wherein it has been held, that, for labors and services and materials furmshed under a special contract, and where the party has not fully performed Ms contract in every particular, yet he may recover, so far as the defendant has received and is enjoying the fruits of Ms labors, allowing the defendant, as a set-off, all sums necessary to his complete indemnity for all deficiencies in the work, or failure literally to comply with the terms of the contract.

On the part of the defendants, it is insisted, that this case does not fall within the principle settled in the cases of Hayward v. Leonard, 7 Pick. 181; Smith v. First Congregational Meeting-house in Lowell, 8 Pick. 178; Brewer v. Tyringham, 12 Pick. 547; Snow v. Ware, 13 Met. 42, and cases of like character. It is said, that in these cases the deficiencies, or neglect to fulfil the special contract, were only slight deviations in the manner of performance, or the time of doing the same, but that there was really a substantial performance of the entire contract. TMs may be so, and to this extent, as entire precedents, these cases may differ from the present. But we are to look at the principle. The foundation upon which these cases rest was the necessity of introducing a modification of the doctrine, that a party stipulating to do certain work under a special contract could recover nothing therefor, if the party doing the same had not literally complied with all the minute stipulations of the special contract, although the work and materials were of greater value and benefit to the other party, and were, from the very nature of the case, to accrue solely to his benefit. But these cases were all cases of a deviation from the special contract, and such a departure from it, that the party could not have maintained an action thereon, as he could not have shown a performance on his part, which was required by the terms of the contract

The present case presents these facts: the parties had entered into a special cqntract, under which the plaintiff has rendered the defendants valuable services, and, while engaged in good faith, and with the honest purpose of fulfilling his stipulations and completing the work, the defendants arrested his further progress, and prevented the full substantial performance of the contract; such interference and prevention on the part of the defendants occurring, however, after the expiration of the time stipulated in the special contract as the period for the completion of the work; and the question is, whether this latter fact takes the case out of the rule allowing a recovery on the common counts, to such extent as the defendant is really benefited by the services rendered, after making all proper deductions, although the work was not done strictly according to the terms of the contract.

That the fact, that the party had not completed the work within the time stipulated, would not necessarily bar a recovery upon the common counts for the actual benefits received therefrom by the defendant, if the work had been afterwards fully completed, will be conceded. But it is insisted, that, if there has been such failure in point of time, and the other party thereupon forbids further prosecution of the work, and, by reason of this, it is left unfinished, and the contract not substantially performed, the plaintiff cannot resort to his action on the common counts for what he has done, however honestly he may have intended to perform his whole contract.

If the position taken by the defendants is sustained, then it must follow, that, if there be any failure, however slight, to perform all the stipulations of the contract, and although such omissions or deficiencies are by no means incompatible with the substantial performance of the contract, yet the party performing the work may always be barred from recovery in any form, by the intervention of the other party before the substantial completion of the work, and his forbidding and preventing the finishing the work stipulated to be constructed. In the case supposed, it is quite obvious that the party who had performed the services and furnished the materials could not resort to an action on the special contract, because of his inability to aver performance on his part in every particular. If he can also be successfully met in an action on the general counts, by the defence that the work is not substantially finished, then he is entirely remediless, and wholly at the mercy of his employer, if such employer elects, at any time before the finishing the work substantially, to interfere and prevent its completion, upon the occurrence of any failure on the part of the builder to conform to the terms of the contract.

In the present case, much progress had been made in the work, and it was rapidly approaching to its completion, when the defendants interfered. But for that interference, so far as appears, no other material deviation from the contract would have occurred except the failure in point of time, which, as already remarked, would not have defeated the plaintiff’s right of recovery on the common counts.

The cases of Linningdale v. Livingston, 10 Johns. 36, and Raymond v. Bearnard, 12 Johns. 274, cited by the plaintiff, tend strongly to maintain the position, that the conduct of the defendants, in interfering and preventing the completion of the work, when the plaintiff was, in good faith and with proper means, prosecuting the same to a speedy termination, was a rescinding of the contract. But, if it be doubtful whether these acts of the defendants amounted to a rescinding of the special contract on their part, we are of opinion that it was, at least, such an act as will estop the defendants from interposing the objection that the work is not substantially completed, and thereby prevent a recovery on the common counts, which the plaintiff would otherwise have been entitled to. The defendants might well have insisted, that the plaintiff should finish the building, before he was entitled to recover on the common counts, but they voluntarily waived that right, by forbidding the plaintiff to proceed to complete the same. It is no sufficient answer for the defendants, when called upon to make a proper compensation for these services and the materials found by the plaintiff, that the plaintiff had not finished the work within the precise time stipulated, and they cannot avail themselves of this to justify a prevention of the substantial completion of the building, and subsequently, upon the plaintiff’s yielding to this requirement of the defendants to proceed no further with the work, urge the fact that the work was not substantially completed, to prevent any recovery by the plaintiff on the common counts.

If it be said, that the defendants have the legal right to interpose and forbid the plaintiff from proceeding further in the work, after the expiration of the time in which he had stipulated to complete it, it may be conceded that they had such right, but, if exercised, it may have its effect upon the relation of the parties, and upon any right to object that the plaintiff has left the work unfinished. Had they not thus interposed, they might have made the objection; but, having done so, they have thereby estopped themselves from setting up the objection to a recovery on the common counts, that the building was not satisfactorily completed.

There are other peculiar circumstances in the present case, which strengthen the case of the plaintiff in an equitable view. The original time stipulated for the completion of the work was the 1st of April; but this was rendered impracticable, by reason of the failure, on the part of the defendants, to have the foundation for the same ready at the proper time. The parties, by mutual consent, then extended the time for finishing the work to the 20th of June. A suitable number of hands was employed by the plaintiff in the prosecution of the work, and the same was rapidly approaching to its completion, when the work was arrested by the peremptory order of the defendants. The case is free from all objections of voluntary or wilful abandonment of the work, or designed neglect to conform to the terms of the special contract.

The case, in the opinion of the court, is one where the plaintiff may maintain his action upon the general counts, giving the defendants the benefit, by way of set-off, or in diminution of damages, of the stipulations in the contract, and a remuneration for all omissions on the part of the plaintiff to comply with the same..

The particular provision in the special contract, that a part of the payment for the services of the plaintiff was to be made by a conveyance to the plaintiff of a certain parcel of land, certainly presents some difficulty in the matter of maintaining this action upon the common counts. It would have been more objectionable, and perhaps fatal, to a recovery on the general counts, if the special contract had been fully performed by the plaintiff, and no act had taken place on the part of the defendants, interfering with the work.

This objection is, however, much weakened by the fact, that it is a ease where the special contract was not performed, and its completion was prevented by the act of the defendants.

The application of the principle contended for by the defendants would Obviously work great injustice, if so applied io all cases where part of the stipulated payment was to be made in something other than money. Take the case of a mere omission of completing the work in the time stipulated in the contract, and where there was no prohibition of continuing the work, and the same was, at some short period after, completed. Here, the special contract could not be enforced, because the same was not precisely performed on the part of the plaintiff, and his only remedy must be the resort to the common counts; and if the fact, that the original contract was to make the payment in part by a conveyance of land, deprives the party of recovery in this form, he would seem to be remediless.

It seems necessary, therefore, that, without reference to the stipulated mode of payment, where the special contract has not been performed, and the omission so to do, on the part of the plaintiff, has occurred under such circumstances as will justify a recovery at all, resort may be had to the common counts.

But, in estimating the sum to be paid by the defendants, if part payment was to be made in real estate, or any specific article of property, the sum to be allowed as damages should not exceed the actual value of the land, or other property stipulated to be secured in payment, which may be less than the sum at which it may have been estimated in the proposition of the owner, when offering to convey the same as part of the payment for the work. The facts stated in the present case show, that the plaintiff offered to accept a deed of the land as part payment for the same, and in the manner stipu* lated in the contract, bnt the defendants refused to make such conveyance; had they done so, they would have secured to themselves the full benefit of a payment in land, agreeable to the terms of the contract. Under the circumstances, and it not appearing that the land was over-estimated, the fact that the payment was in part to be made by conveying certain real estate, should not preclude the plaintiff from recovering on the common counts.

We think, as the parties had fixed a certain time for payment, namely, thirty days from the time when the building should be completed, and the auditor has reported the time when the work might have been completed, but for the interference of the defendants, that, agreeable to his report, there may be allowed, as damages, interest after thirty days from that time, upon such sum as was due to the plaintiff.

The order drawn in favor of G. N. Black and Company, for the sum of nine hundred dollars, was properly disallowed as a part of the credit of the defendants. It was accepted only conditionally, and has not been paid by the defendants, nor does it appear that they are liable therefor, but, on the contrary, the same is surrendered and placed on the files of the court, for the defendants’ use.

The result is, therefore, that judgment will now be entered for the plaintiff, agreeably to the report of the auditor.

Judgment for the plaintiff.  