
    
      John Thomas ads. James Woodruff.
    
    1. Plaintiff undertook to dig and wall a well for defendant within three weeks, for a specific sum. After commencing, he encountered difficulties in his progress, but continued to dig for nearly two months, without completing the work, when he was taken sick and left it. On leaving, on account of sickness, he said to defendant, he claimed and considered it as his job, to which the reply was, go on then, and finish it. The limitation of time within which the work was to be done, was not insisted on by defendant, at the moment of its expiration, and in three or four months, plaintiff having recovered his health, returned and offered to finish the work, but defendant declined, saying that another was then in the well digging it.
    2. There being a waiver of the limitation, as to time, plaintiff held entitled, under the circumstances, to recover upon an apportionment of his contract.
    
      Befiore O’Neall, J. at Union, Fall Term, 1843.
    This was a sum. pro. on a contract to dig a well. The plaintiff, Woodruff, agreed to dig and wall the well for $60. It was to be completed in three week. He began the last of February, and soon encountered a sandstone, which rendered the digging yery tedious. He labored on assiduously until April, having dug about 60 feet. He was then taken sick, and as he was leaving, told defendant he would be back as soon as he got well, and finish it. He claimed the job, he said, as his. Defendant said, go on then, and finish it. Plaintiff was sick for three or four months. In July he returned, and said to defendant, I am come to finish your well. He declined, saying that another was then in the well digging it. The well, when finished, extended 80 feet. The man who finished it, said the plaintiff’s work was worth 50 or 60 dollars.
    The presiding Judge gave the plaintiff a decree for $30.
    The defendant appealed, on the following grounds:
    1st. Because the contract proved was, that plaintiff was to dig the well within three weeks, for the sum of sixty dollars, and that the three weeks elapsed before he complained of being sick, and left the work unfinished.
    2d. Because the plaintiff did not return in a reasonable time, nor inform the defendant of his situation, and of his intention to return to finish the work, and the defendant had to employ another workman at a high price to finish the well.
    3d. Because the decree is contrary to law and evidence, and there was no satisfactory proof of the value of the work done by plaintiff.
    Herndon, for the motion. Thompson, contra.
   Curia, per

O’Neall, J.

In this case, the limitation of time within which the work was to be performed, was not insisted on by the defendant, at the moment of its expiration, he suffered the plaintiff to continue digging the well for nearly two months afterwards. This was a waiver of the limitation. So too, when the plaintiff was about leaving the work on account of sickness, and told the defendant he claimed and considered it as his job, the defendant said to him go on and finish it. This was as much as to say, true, you may do the work and have your compensation, notwithstanding the time within which it ivas to be done has long since passed. But the defendant contends that notwithstanding this was so, that yet, as the plaintiff did not then go on and do the work, he is not bound to pay. To this, the reply is most satisfactory. The plaintiff was then sick, and so continued until he returned and offered to do the work. The act of God never prejudices any one. The plaintiff’s sickness would alone deprive him of the entire benefit of his contract, so as to prevent him from claiming the entire price; an apportionment is, however, always made under such circumstances. The defendant had the benefit of the plaintiff’s services, his work will diminish pro tanto, the amount the defendant may have to pay for finishing the well. Under all the circumstances of the case, the decree of the circuit Judge is regarded as quite favorable enough to the defendant. If any one ought to complain, the plaintiff might, with more propriety, than the defendant. The motion is dismissed.

Richardson, Evans, Butler, and Wardlaw, JJ. concurred.  