
    Charles Cannon vs. William Wildman and others.
    B. C. & Co., in September, 1850, made a written contract with' a railroad company, to construct for the company a railroad, according to certain specifications, the work to be completed on or before October 1,1851, and on failure to complete it within thé time limited, to pay all damages sustained by the company. The road was not completed, within thp time, and the company sustained damage thereby to the amount of $3,800. In .June, 1852, the railroad company made a supplementary contract with, B. C. & Co., by which they agreed to accept the road, and to release them from certain-parts of the work stipulated for and which were then unfinished, and B C & Co. agreed that a certain sum, estimated as the.expense of the unfinished Work, should be deducted from the amount which they were to receive under the original-contract. Held that this agreement [ *473 ] was not, *taken by itself, a waiver of the claim of the company for damages for the failure to complete the road within the time limited by the contract.
    The original contract provided that if B C & Co. did not, in the opinion of the engineer of the company fiom time to time fully comply with and perform all the stipulations of the contract, the engineer might dismiss them from the work, in which case the contract should determine, and all that was due them for work done should be forfeited, or the engineer might make such deductions from the monthly payments as he should deem reasonable for such breaches of the agreement. Held that the remedy thus furnished had reference to defaults occurring from time to time, rather than to a final default to complete the work in time, and that the company, by neglecting to avail itself of that remedy, had not waived its claim for damages for failure to complete the road within the time limited. •
    Certain detailed estimates of the cost of -the work were annexed to the contract. Shortly -before the contract was made, many persons, and among them B C & Co, were assembled to make proposals to the railroad company for the work. These estimates were exhibited to them by the engineer of the company, who stated that they were made according to his best judgment, but were only approximate estimates; that they were given them that they might have the benefit of his judgment, and {liat they could go over the ground and examine for themselves. B C & Co. went over the ground, and were experienced and competent to judge for themselves, but did not make a thorough examination. The contract was made fairly, without fraud or mistake, and was an entire contract to do the whole work for the sum of $290,000. A portion of the work proved to be much more expensive than was estimated, from a large excess of rock excavation above the quantity estimated. Held that B. C. & Co. understanding^ took the risk of tiie work, and were not entitled to any allowance beyond the contract price.
    By the contract certain depot buildings were to be erected by the contractors “ after such plans and of such dimensions as might be adopted by the engineer.” The engineer required certain of them to be built of somewhat larger dimensions than he had stated at the time of the signing of the contract that he should require, and the expense of their erection was thereby increased above the sum named in the estimates. Held that the . contractors were not entitled to an allowance beyond the contract price for the increased expense.
    B C & Co, assigned to W, all their claim on the railroad company, to secure an indebtedness to him of about $10,000, with full power-to" collect of the company the whole amoijnt due. The railroad company and W were after-wards factorized by certain creditors of B C & Co, whose claims amounted to about $28,000. After finishing the work, all the members of the firm except B went away to distant parts, having first given written notice to the railroad company not to pay any money or stork or dispose of any property of the firm upon the authority ot B. Some time after, B, assuming to act for B C & Co, W as assignee of their claim, the attaching creditors, and the railroad company, made a general settlement of the affairs of B C & Co. with the railroad company, in which the attaching creditors assigned their claims to W, the railroad company transferred to W $30,000 of the stock of the road, and B C & Co by B released the railroad company from all further claim under the contract. The amount then actually due to B C & Co from the railroad company, after deducting damages for the failure to complete the road in time and allowing nothing for the expense of the work above the estimate, was $27,786, which by the contract was payable in stock of the company. The settlement was made by all parties fairly, and B intended to benefit B C & Co..and did in fact benefit them by the settlement. All the stock received by W was applied in payment of his own claim and the claims so assigned to him. The other members of the firm, three years afterwards, in the name of the firm, assigned to another creditor their claim on the railroad company and on W. On a bill in chancery brought by him against the railroad company and W, praying that the settlement be set aside, and that the accounts be adjusted, it was held, in dismissing the bill, that B had full power to make the settlement, and that the notice of the other members of the firm that nothing should be paid out upon the authority of B, could not affect the right already possessed by W, under the assignment previously executed by the firm, to receive the full amount of the claim from the railroad company.
    Whether, if the other members of the firm had given notice to the railroad company that they should not assent to any settlement made by B, a settlement made by him would be binding on them: Quere.
    
    Bill in equity. The facts were found by a committee.
    On the 18th of September, 1850, Beard, Church & Company, a copartnership consisting of John F. Beard, Abner Church, Samuel K. Header and Wellington Chapman, all of whom were made respondents to the bill, entered into a contract with the Danbury and Norwalk Railroad Company, who were also made respondents, by which they agreed to construct a railroad for the company. The important parts of the contract are as follow's :
    “ The said Beard, Church, Header and Chapman, contractors, hereby promise and agree to execute, in a thorough and workmanlike manner, agreeably to the directions of the engineer of said road for the time being, all the grubbing, clearing, mucking, excavations of all kinds, embankments, ditches, drains, bridges, bridge abutments, piers, *cul- [ *475 ] verts, sluices, cattle-guards and all other masonry, removing buildings, changing roads and streams,' road and farm crossings, foundations for culverts, and all other work necessary for the complete construction and security of said road, as delineated on the plans and profiles of the same, conformably to the following specifications, and to such notes of levels and surveys as shall be furnished, and to such directions as shall be given by the engineer of said road for the time being. * * * * And the said contractors hereby further promise and agree to erect station houses, car and engine houses, woodsheds, and suitable platforms for the accommodation of passengers and freight, at such places on the line as the engineer may designate, and after such plays and dimensions as may by him be adopted. * * * And the said contractors hereby further promise and agree to procure the right of wav for said railroad, of such width in all places as the engineer and executive committee may deem necessary for said road, and for procuring stone and gravel for its construction and security, and for depot grounds and station hohses; and to remoye all buildings standing on or so near the centre or located line as to render their removal necessary ; to pay all expenses which shall be incurred in procuring said right of wav : and shall also build all fences which, by the existing laws of this state, said corporation are bound to erect, and of such materials as shall be approved of by the engineer. * *
    “ The work on all or either of the sections shall be commenced, as the engineer may direct, on or before October 1,1850, and at such places, and proceed in such manner, as the engineer shall direct, and shall be completed, ready for the acceptance of the engineer and executive committee, on or before the 1st day of October, 1851, and for a failure to make and complete said work within the time fixed for its completion, the contractors shall pay all damage sustained by the company; and the said engineer may employ other assistance to hasten the completion of each or any section of the road-way or any other portion of the work, whenever, in his opinion, it shall be requisite to insure the completion of the work within the specified [ *476 ] time, and the *expense of such assistance shall be-charged to and paid by said contractors.
    “ The contractors shall not let or transfer this contract, or any portion thereof, to any other person, without the consent of the engineer, given in writing, on a written request or application. The contractors shall, upon the application of the engineer, discharge any laborer or other person from their employment, and they shall not employ any workman or laborer who has been discharged by any other contractor for improper or disorderly conduct. And generally the said contractors agree to furnish all the materials necessary for the proper construction and security of the work, to do and perform all said work to the acceptance of said engineer and executive committee, and in accordance with the terms of the charter and the statute laws of this state, on or before the first day of October, 1851.
    “ On condition of the fulfillment by the said contractors of the foregoing provisions of said contract, the said Danbury and Norwalk Railroad Corporation, hereby promise and agree that they will, for the doing and performing the work as aforesaid, pay or cause to be paid to the said contractors, their heirs, executors or administrators, the sum of two hundred and twenty thousand dollars, in bills current at the banks in Connecticut, and seventy thousand dollars in the stock of said road at its par value. Payments will be made monthly during the progress of the work, upon monthly estimates of the engineer, and sixty-five per cent, of the relative value of the work done, or matetials furnished, or right of way procured, will be paid in cash, and fifteen per cent, thereof in stock as aforesaid, until the work is completed and accepted by the engineer and executive committee, when the balance due shall be paid to the said contractors, their heirs, executors and administrators, in cash and stock as aforesaid.
    “And it is further provided, that in case the contractors shall not, in the opinion of the engineer for the time being, well and truly from time to time comply with and perform all the agreements herein before stated and stipulated on their part, the said engineer, at his discretion, may dismiss them from the *work, and that then, in that event, the foregoing [ *477 j agreement shall be null and void, and any balance for work done on said road which would have been due to said contractors shall be forfeited and become the right and property of said corporation. Or said engineer and said committee may make such deductions from the payments to be made to the said contractors as aforesaid, as they shall deem reasonable for such breach of agreement.”
    At the time the contract was signed by the parties there was appended thereto a paper containing certain estimates of the character and cost of’the work which had been made by one Harvey Smith, the engineer of the railroad company, and were derived from a survey of the route of the road made by him, by the direction of the railroad company, during the spring and summer of the year 1850.
    A few days previous to the making of the contract, Smith, in behalf of the railroad company, made the following statements, relating to these estimates, to a large number of persons assembled for the púrpose of making proposals to the railroad company for building the road or portions thereof, among whom were Beard, Church, Meader and Chapman, namely: “ Here is an estimate ; this is according to our judgment; it is given you that you may have the benefit of our judgment; the estimates are but approximate estimates ; you can now go over the ground, and you have the same facilities that we have for examining; you can sound and dig pits if you like.” Subsequently to these representations, and before the contract was executed, Smith replied to the inquiries of Meader and Chapman, as to whether the estimates were to be depended on, and whether he had made an allowance of per centage for shrinkage, “ that the estimates were according to his best judgment,and that he had no doubt he made an.allowance which would cover the shrinkage,” — which shrinkage Smith understood to mean the settling of embankments and the sinking of the road in soft places. Meader and Chapman had been long acquainted with Smith, as an engineer, and had great confidence in him and in his judgment, and they all [ *478 ] *had the same facilities and opportunities for making a correct estimate of the quality and character of the work that the railroad company or its engineers had. Neither of them was with the engineer when the survey and estimates were made, except Beard, who was not an engineer and took no part in making the estimates, and had had no experience in such matters. Church, Meader and.Chapman, before the contract was made,, went over the line of the road and made such an examination of it as they chose to make. No test-pits were sunk nor soundings , in ponds and marshes made, either by them on these examinations, or by the engineer in the survey upon which the estimates were based. Church, Meader and Chapman had carried on for many years the business of railroad contractors, and had had much experience in it. The contract was fairly made, without fraud or mistake on the part of either of the parties, and without any misapprehension as to the design of annexing the estimates thereto.
    Immediately after the examinations were made, and before the making of the contract, Beard,.Church, Meader and Chapman entered into partnership with reference thereto, under the name of Beard, Church & Co.
    At the time .the. contract was made Chapman and Meader had no capital, and Beard was worth only about $3,000. Church was reputed to be worth about $20,000. All the means of Beard were immediately exhausted in commencing the purchase of the right of way for the road, On the 27th of August, 1850, Church conveyed to Joseph Pratt, Jr. and Charles Benton, his brothers-in-law, all his property, both real and personal; and on. the 4th of November, 1850, he .assigned to them all his interest in the contract with the railroad company of which assignment notice was giyen by them to the railroad, company on the 2nd day of January, 1851; and on the 13th of January, 1852, Pratt and Benton- gave him an order on the railroad company for the payment, to him or to his order, of all moneys, stocks ó? bonds which were or might be due to the firm of Beard, Church & Co., or for their proportion thereof.
    The contract with the railroad company was not fully *performed by Beard, Church & Co., within the [ *479 ] time limited therein ; the principal causes of such non-performance being the want of sufficient pecuniary ability on the part of the firm and of its members, and the inefficiency of a sub-contractor,-to whom.one of the sections of the road had been under-let by the firm ; and by reason of such non-performance the railroad company sustained damage to the amount of $8,805.79.
    On the 14th day of January, 1852, Beard, Church & Co. executed and delivered to William 0. Beard, William Wild-man and Roger Averill, an assignment of all their claim on the railroad company under the contract, whether then accrued or thereafter accruing, with full power to collect the same ; which assignment was made for the purpose of seeming the assignees for sundry liabilities for, and claims against the firm, amounting at that date to about $10,000, but the exact amount was not then ascertained ; and the exact amount then due from the railroad company to Beard, Church & Co. was not then ascertained, and could not be fully ascertained for a considerable period of time thereafter.
    On the 5th of June, 1852, the railroad company made the following further agreement with Beard, Church & Co. with regard to the work.
    . “ Examination made on the 28th day of May, 1852, by the executive committee, engineer and contractors for the construction of the Danbury and Norwalk Railroad, with a view to the completion and acceptance of said railroad, and intended to embrace the main track of said road, the turn-outs subject to measurement. [Here follow the items of the examination, covering several pages.] It is hereby agreed between the Dan-bury and Norwalk Railroad Company, by their executive committee and engineer, of the first part, and Beard, Church & Co., contractors for the construction of the road, of the other part, that the railroad company will release the said Beard, Church & Co. from all liability to build any portion of the fences on the line of said- railroad, and will accept as complete, the grading, masonry, culverts, bridges, sluices, drains, main track, side track, subject to measurements, farm and road crossings, and all other matters and *things mentioned in [ *480 ] the foregoing list, and for which an allowance is made and a price agreed upon. And in consideration of which the said Beard, Church & Co. agree that the sum of $3,765.04. shall and may be charged to them on the books of said com pany, and deducted from the amount agreed to be paid to them, the said contractors, for the building said railroad, in addition to the amount which may be found due to Jonathan Camp, Jr., for building the fences on the lands of Henry A. Dvngee, William B. Betts and others^ Mrs. Salmon Dikeman and George A. Davenport. Norwalk, June 5, 1852.”
    Immediately thereafter Church, Meader and Chapman left the work and went away into distant parts of the country, leaving Beard the only resident member of the firm.
    On the 20th of August, 1852, Church, Meader and Chapman gave the railroad company the following notice, signed by them : “ To the President and Directors of the Danbury and Norwalk Railroad, and George W. Ives, Treasurer of said company: We hereby notify and forbid you paying any money or stock, or disposing of any property belonging to Beard, Church & Co., by authority of John F. Beard. Norwalk, August 19, 1852.”
    In' the month of January, 1854, a written correspondence occurred between the president of the railroad company and Church, in relation to a settlement between the company and Beard, Church & Co., and in relation to the indebtedness of the firm to Yose, Perkins & Co., in which correspondence Church claimed that the railroad company was indebted to Beard, Church & Co. more than $40,000.
    On the 4th of April, 1854, there were three suits pending against Beard, Church & Co. in the superior court for the county of Fairfield, two of which were in favor of the firm of Yose, Perkins & Co., and one in favor of Samuel E. Olmstead ; and on the claims so in suit, there was due from Beard, Church & Co. to Yose, Perkins & Co. about $22,000, and to Olmstead about $5,700. In all these suits William O. Beard, William Wildman, Roger Averill, and the railroad company, were made garnishees. On said 4th day of I" *481 1 * April, there was also due from Beard, Church & Co. to William O. Beard $5,500, to Wildman $5,400, and to Averill $603.65.
    On said 4th day of April, 1854, the railroad company, Yose, Perkins & Co. and Olmstead, the attaching creditors, William O. Beard, Wildman and Averill, the assignees, and John F. Beard, claiming to act in behalf of Beard, Church & Co., made a settlement of their respective claims, growing-out of the contract and of the suits ; in pursuance of which settlement, Yose, Perkins & Co., in consideration of $12,000 of the stock of the railroad company transferred • to them and estimated at its par value, executed and delivered to William O. Beard, Wildman, .Averill and Olmstead, an assignment of their claims on Beard, Church & Co.; and Beard, Church & Co., and Averill, Wild-man, William O. Beard and Olmstead, executed the following releases to the railroad company, for the consideration stated in the releases. That executed by Beard, Church & Co. was as follows:
    “ In consideration of the sum of $80,000, paid and transferred by the Danbury and Norwalk Railroad Company, in the capital stock of said company, at its par value, to Roger Averill, William Wildman and William O. Beard, who, as our assignees, hold all and every claim and demand which we have or ought to have against said railroad company, which transfer and payment is pursuant to said assignment, for the purpose of a full settlement with said company, and to pay the balance due said assignees and S. E. Olmstead from Beard, Church & Co., and claims which they hold by assignment and suit sufficient and more than sufficient to cover the same ; we do hereby release and discharge the said Danbury and Norwalk Railroad Company from all claims and demands whatever, which we have or ought to have against them, for or on account of the construction of said railroad, or any account whatever.”
    That executed by the other parties named was as follows:
    “ In consideration of the sum of $30,000, received to om full satisfaction of the Danbury and Norwalk Railroad Company, in stock of said company at its par value, we, the undersigned, *assignees of the firm of Beard, Church & [ *482 ] Co., holding in our right the right, title and interest of said Beard, Church & Co. to any and all claims and demands which said Beard, Church & Co. had, or have, or ought to have, against said railroad company, for labor, materials, moneys and services done, furnished or performed by said Beard, Church & Co. or on their account, to and for said railroad company, under pursuant to any written or verbal contract or contracts in and for the construction of their roailroad, do hereby release and discharge said railroad company therefrom, and also from a lien or claim held and made by Yose, Perkins & Co., of the city and state of New York, whose claim, in connection with S. E. Olmstead, we have purchased ; and also from a factorizing suit, and any lien acquired thereby, in which said S. E. Olmstead is plaintiff, and said Beard, Church & Co. are defendants ; and generally from all claims and demands which said Beard, Church & Co., or we, as their assignees, have or ought to have against said company: as witness our hands and .seals this 4th day of April, 1854.
    Roger Averill. [l. s.'
    William Wildman, [l. s."
    
      W. O. Beard, ' [l. s.'
    
      “ I concur in the foregoing, S. E. Olmstead.”
    Church, Meader and Chapman were not' present at the time of the settlement, and had no knowledge of it until several months thereafter, and have never assented thereto. The settlement was made in fact in good faith by all the parties thereto, and was an equitable settlement, and beneficial to Beard, Church & Co., and intended for the best, interest of all concerned ; and John F. Beard knew of and assented to the whole arrangement then made between the various parties to the settlement, and intended therein to promote the best interest of Beard, Church & Co.
    On said 4th day of April, 1854, previous to the settlement, there was a balance due from the railroad company to Beard, Church & Co., on the contract, and for other work performed and materials furnished by them in constructing the road and not included in the .contract, and which the railroad [ *488 ] company had agreed to *pay, (after deducting the sum of $8,805.79, the amount of the damage sustained’ by the railroad company by reason of the nonTperformance of the contract within the time limited) of $27,786.66, payable in the stock of the railroad company at its par value, which sum does not include any additional cost of constructing the road, by reason of any excess of excavation of earth or rock, or any excess of embankment or any excess of cost of depot and station houses beyond the estimates in the paper appended to the contract. And if, in the opinion of the court, the claim of the railroad company for damages was in law waived or released, by reason of any of the foregoing facts and agreements, or if, in the opinion of the court, the agreement of the 5th of June, 1852, was of itself, without other evidence, sufficient proof of such waiver or release, then the committee found the balance due from the railroad company to Beard, Church & Co., on the 4th of April, 1854, to have been $32,032,02, payable in the stock of the railroad company at its par value.
    In pursuance óf and compliance with the settlement, the railroad company transferred to William 0. Beard, Wildman and' Averill,’so much of the stock of the railroad company as, at its par value, amounted to $30,000, which stock was all applied by them to the'discharge of the claims of themselves, and of Vose, Perkins & Co. and Olmstead, against Beard, Church & Co.
    
      The excess of earth excavation made by Beard, Church & Co., in constructing the road, above the quantity stated in the estimate, was 45,488 cubic yards, of the value of $6,277, and the like excess of rock excavation was 8,670 cubic yards, of the value of $6,936. Part of the excess of earth excavation, of the value of $3,182, was in consequence of the unexpected sinking of embankments in ponds and marshes, and a part, of the value of $861, was in consequence of changes in the line and grade of the road, made by the engineers of the company, at the request and for the benefit of Beard, Church & Co. 3,154 cubic yards of the excess of rock excavation were found in section 22 of the road, for which section *no rock had been [ *484 ] estimated, and which was found to contain very hard rock, and expensive to excavate. The attention of Chapman and Church was called to some indications of rock in that section before the contract was signed; and the additional cost was to some extent defrayed by the sale of the rock taken out and for which the railroad company were not credited, and by the use of it in building protection walls on the road, but the committee was not able to report the whole amount of such sales or the value of the rock so used. The actual cost to Beard, Church & Co., of building the road, varied as to many items in the estimate from the prices named therein, and was in some cases less and in some cases greater. The additional cost of such depot buildings and station houses as were required by the engineer of the railroad company, and as were, in compliance with such requirements, constructed by Beard, Church & Co., was $1000 above the sum named therefor in the estimates. The engineer required two of the buildings, one at Danbury, and one at Nor-walk, to be two stories in height, and thereby more expensive than such as he had informed the members of the firm at the time of their signing the contract that he should require.
    On the 14th day of January, 1852, Beard, Church & Co. were indebted to the petitioner in a large amount, which was not then adjusted, for services performed and advancements made by him in constructing a portion of the road ; and on the 21st of December, 1857, the petitioner was the lawful owner of certain other claims against the firm, which had been purchased by and assigned to him. The whole amount of this indebtedness and of these claims was on the 21st of December, 1857, about $8,000. On that day Church, in consideration of this claim, executed to the petitioner, in the name of Beard, Church & Co., an assignment of all claims of the firm on the railroad company, and on Averill, Wildman and William O. Beard as prior assignees of their claim, to which assignment Meader and Chapman afterwards assented, but it was never assented to bv the partner Beard. The firm of Beard, Church & [ *485 ] Co. had not *then been dissolved. Some further facts were found by the committee with regard to the claim of the petitioner and the assignment to him, but as they do not affect the result, in the view of the case taken by the court, they are omitted.
    The petitioner, after stating in his bill the contract of Beard, Church & Co. with the railroad company, the assignment by them to Messrs. Averill, William O. Beard and Wildman, of their claim on the company under it, to secure an indebtedness to the assignees, and the later assignment of the claim to the petitioner, alleged that the settlement of April 4,1854, was afraudulent one, and that a much greater amount was due to Beard, Church & Co. from the railroad Co., than that allowed in the settlement, and that Beard had no authority to discharge the claim; and that a large sum ought equitably to be allowed to Beard, Church & Co. for the excess of the cost of the work above the estimates made and exhibited by the company at the time the contract was made, which estimates were alleged to have been, either through mistake or by fraud, grossly incorrect and deceptive, and also for the cost of depot buildings which were ordered by the company to be made at much more expense than was at first stated ; and prayed that the settlement might be set aside, the account adjusted, and the balance justly due Beard, Church & Co. ascertained, and that Averill, Wildman and Wm. 0. Beard, be ordered to transfer to the petitioner whatever stock they had received from the railroad company beyond the amount of their claims. The railroad company, Averill, Wildman, William O. Beard, and the members of the firm of Beard, Church & Co., were made parties respondent.
    The superior court, upon the facts found by the committee, dismissed the bill, and the petitioner brought the case before this court by motion in error. The .only errors assigned were, 1st., that the decree should have been for the petitioner and not for the defendants, and 2d., that it appeared on the face of the record that a large balance was due from the railroad [ *486 ] company to Beard, Church & Co., and that a *decree should have been made in favor of the petitioner to recover this sum from the railroad company.
    
      Dutton and Belden, for the petitioner.
    1. The settlement of June 5, 1852, was-a waiver on the part of the railroad company of all claim for. damages for the failure U> complete the work within the time limited by the contract. By that settlement the company agree to accept the road, with the exception of certain parts of the work not done, which were estimated at $3,765, and for which it was agreed that that sum should be deducted from the amount to be paid to the contractors. The company should then have made their claim for damages, if they had intended to assert it at all, and by not making it, and especially by agreeing upon the sum stated as the amount to be deducted from the contract price, they have waived it.
    2. The contract provides the mode in which the company shall take advantage of the failure of the contractors to perform their agreement. At any time upon their failure to perform any of the stipulations of the contract, the engineer may dismiss them from the work, and in that event the contract is to become void, and any balance due for work done is to be forfeited ; or the engineer and committee may make reasonable deductions from the payments to be made for such breaches of the agree ment. By not availing themselves of this provision they have waived the right to claim damages at all.
    3. If the damages are not allowed to the railroad company, then there was due to Beard, Church & Co., according to the finding of the committee, at the time of the pretended settlement, $32,032, or more than $2,000 above the $30,000 allowed to them in the settlement.
    4. There was also $1,000 due for extra expense upon the depot buildings at Danbury and Norwalk. It is expressly found that these buildings were required by the engineer to be larger and more expensive than was stated at the time the contract was made.
    5. There was further due in equit3r and justice over *$12,000 for excess of rock excavation and em- [ *487 3 bankment, beyond the estimate furnished by the company as the basis of the contract.
    6. Under the circumstances, which were known to the company, it was a fraud in law for the company to settle with Beard for $30,000, against the express prohibition of the other partners ; and the court will regard such pretended settlement as of no effect by reason of the fraud. This would be so even if it be admitted that Beard had the legal power to make such settlement.
    7. But Beard had not the power to make the settlement. His authority as a partner was revoked by the notice. One partner can not, against the express prohibition of his co-partners, brought home to a debtor, compromise a debt, by receiving less than the full amount, and giving a discharge, so that the other partners will be bound bv it. Especially will this be so regarded as respects the stock belonging to' Beard, Church & Co. The railroad company could not legally dispose of this on the authority of Beard alone, after the prohibition, as it fell within the express terms'of the prohibition. ‘ 2 Selwyn N. P., 1145. and note p. 1140. Gregg v. James, Breese, 167. Leavitt v. Peck, 3 Conn., 124. Watson on Part., 165.
    
      Carter and Ferry, with whom was Averill, for the’ defendants.
    1. The petitioner does not claim, nor can he have, any other or greater fights or equities than those of Beard, Church & Co., under whom he claims as a purchaser of their rights, not as a creditor having equities of his own.
    2. The' contract of Beard, Church & Co. with the railroad company was entire ; the whole work was to be done for $290,-000 in cash and stock. The estimated cost of different items of the work was therefore no part of the contract, and so long as there was no fraudulent misrepresentation with regard to these estimates, the .contract is not affected by them. The claim of mistake or fraud made in the petition, is not only neg- [ *488 ] atived by the finding, but it is expressly found *that . the contract was fairly made, and without any misapprehension as to the design of annexing the estimates thereto. The contractors took the risk of the work, and have no claim in law or equity for extra compensation because it proved more expensive than they expected. The depot buildings were to be erected according to the directions of the engineer, and the contractors took the risk of these equally with the other work Neither the contract nor the estimates state what was to be the size of these buildings. The report- finds the actual cost of the work on the road to have been in some cases less than the estimated cost, and in some cases more,' and this court can not know from the facts found, whether on the whole the expense was greater or less than was estimated. Moreover, the petitioner does not offer to allow the’ railroad company for the saving of expense upon some of the sections.
    3. The settlement of April 4, 1854, was just and legal, and ought not to be’ disturbed. 1st. John F. Beard, as one of the partners, had authority to make it. The notice to the railroad company by the other partners was inoperative. Wilkins v. Pearce, 5 Denio., 541. McBride v. Hagan, 1 Wend., 336. Pierson v. Hooker, 3 Johns., 68. Mills v. Barber, 4 Day, 428. 2d. If' otherwise, the assignees having no notice of it, (and none is found or claimed,) they could not be affected by it. 3d. The assignees not only had no notice of it, but they had acquired rights and authority under the assignment to them which no notice could affect. 4th. The report finds that the settlement was equitable and beneficial to Beard, Church & Co., in whose name the petitioner is seeking to set it aside. 5th. The assignees have received $30,000 in stock at par, in full discharge of claims against Beard, Church & Co. which, at the time of the settlement, amounted to nearly $40,000. If there is any surplus the assignees are entitled to it. 6th. They that ask equity must first do equity, but here is no offer to restore our liens or even our debts, nor to place us in statu quo.
    
    4. The railroad company was clearly entitled to damages for the failure to complete the work within the time limited by the contract, because the report finds that they had *actually sustained such damage. The claim for [ *489 ] damage can not be considered as waived by the agreement óf June 5, 1852, which had no reference to the question of damages, but solely to the acceptance of the work in its then incomplete state, and an allowance for the estimated expense of the parts of the work from which the contractors were released. Nor is the railroad company precluded from asserting its claim to damages by their neglect to enforce the remedy provided by the contract for the neglect of the contractors to perform all the stipulations of the contract. This provision was for the benefit of the railroad company, and it might take advantage of it or not as it pleased. Moreover it relates wholly to defaults occuring from time to time in the progress of the work, and not to a final failure to complete the work within the time limited by the conti’act.
   Sanford, J.

Under a rigid application of the rule relative to the assignment of errors, (18 Conn., 572,) the counsel for the plaintiff would have been confined within narrower limits than they have assumed in argument.

We will, however, notice briefly the points which they have made.

First, it is claimed, that it appears from the record that a larger sum was due from the railroad company' to Beard, Church & Company, than was paid upon the settlement of the 4th of April, 1854, because the committee has found that the balance due to Beard, Church & Co., on their contract, at the time of such settlement, was $32,032.02, and the petitioner claims that the railroad company had, before that time, conclusively waived and released all claims for a deduction from that sum, on account of any damages su’tained bv reason of the non-performance of the contract by Beard, Church & Co. within the time stipulated. •

We think the record before us discloses no such release oi waiver.

It is said, firstly, that the contract prescribes the manner in which damages for non-performance by the contractors shall be ascertained, and that the railroad company, having [ *490 ] omitted *to take advantage of that provision, shall be holden to have waived their right to insist on damages at all. The provision referred to is in these words :—“ In case the contractors shall not, in the opinion of the engineer for the time being, well and truly, from time to time, comply with and perform all the agreements herein before stated and stipulated on their part, the said engineer, at his discretion, may dismiss them from the work, and that then in that event the foregoing agreement shall be null and void, and any balance for work done on said road, which would have been due to said contractors, shall be forfeited, and become the right and property of said corporation; or said engineer and said committee may make such deductions from the payments to be made to said contractors as aforesaid, as they shall deem reasonable for such breach of agreement.” Now it is obvious that this provision has no reference to a final failure of the contractors to complete the whole work by the time specified in the contract, but refers only to such failures as might occur “ from time to time ” within that period; as for defective work, insufficient materials, &c. For such failures the engineer might, at his discretion, put an end to the contract at once, or, with the aid and concurrence of the committee, might make a reasonable deduction from the monthly payments to which the contractors were entitled during the progress of the work. The contract for the final completion of the road on or before the first of October, 1850, is express and positive in its terms, and equally express and positive is the stipulation on the part of the contractors, to pay all damages sustained by the company if they fail to complete the work within the stipulated period.

But, secondly, it is contended that the agreement of. the 5th of June, 1852, is itself a waiver and release of all claim for damages on account of such non-performance.

We think no such construction or effect can be given to that agreement. It was made more than twenty months after the time fixed for the completion of the work. It does not purport to be a final settlement between the parties, or an acceptance of the entire work contracted for, but, on the contrary, [ *491 ] it is in terms restricted in its Operation to those portions of the work which are therein specified. It expresses the assent of the company to “ accept as complete ” the designated portions, and to release the contractors from their liability (not to finish the residue of the work according to their contract, but) “ to build any portion of the fences on the line of said railroad.” And when it is considered that no allusion is made to any delay of the contractors, nor to any damage to the company in consequence of such delay, and that it could not then be ascertained how much longer time would intervene before the final completion of the then unfinished work, it is impossible to conclude that the agents of the company intended to waive its claim for damages on account of such delay.

We think therefore that the instrument relied on is not, in terms or in legal effect, either a waiver or release of such damages. The sum of $3,805.79, the amount of damages found by the committee, was therefore properly chargeable to the contractors, and to be deducted from the sum which would otherwise have been due to them on their contract with the company ; thus leaving due to said contractors, as found by said committee, $27,786.66 only.

Again, it is contended that the contractors were entitled to compensation beyond that specified in the contract for extra work upon the road. And it is found by the committee that the excavations of rock and earth actually made by the contractors, exceeded the estimates made at the time the contract was entered into, and that certain depot buildings were in fact constructed, by direction of the engineer, at a cost considerably exceeding the sum put down in said estimates on that account, and that neither of these items were by the committee brought into the account, or paid by the company upon the settlement of June 5th, 1854. But an examination of the original contract shows that all the hazards of the undertaking were understandingly and voluntarily assumed by the contractors. That contract the committee finds was made fairly, without fraud, mistake or misapprehension, and we know of no principle of law or equity, as administered in our courts, by which the railroad *company can be compelled to pay for such [ *492 ] excess. And besides, it is expressly found that the actual cost of building the road “ varied, as to many items in said estimate, from the prices named in said estimate, and was in some cases less and in some cases greater,” so that this court has no means of ascertaining whether the contract was, upon the whole, profitable to the contractors or otherwise. The contractors must be content to abide by the contract which they thus understandingly and fairly made.

The remaining question is, whether the payment made by the company upon the settlement of the 4th of April, 1854, was made to persons legally authorized to receive it, So as to' exonerate the railroad company from all further liability.' ' '

We have already seen that the amount actually-paid by the railroad company exceeded its liability under the contract with Beard; Church & Co. by more than §2,200. That payment was made several years before the petition had, as against the railroad company, acquired any rights whatever, by assignment or in any other way. It was made to individuals duly authorized to demand and receive it, by virtue of an assignment from Beard, Church & Co.,-given when no other lien upon the fund existed, and made by the united act of all the members of said firm, for a valuable consideration and which even all' of' the members of ther-firm could not have revoked-without the assent of the assignees. The notice and prohibition from Church-, Meader and Chapman to the railroad company had no reference to such' a payment. In its terms the notice ■ relates Only to payments-upon the authority of John F. Beard alone. This payment to William O. Beard, Wildman and Averill, was made by authority of all the partners, and being the whole amount due from the railroad company, and more, of course exonerated the company from all further liability to Beard, Church & Go.

The decree of the superior court therefore -can not, for the cause assigned in the motion, be adjudged erroneous.-

But we think the petitioner has no equity which entitles him to the interposition of the court, either as against the railroad company, or the other defendants in this suit. William £ *493 ] *0. Beard, Wildman and Averill, had large claims against Beard, Church & Co. Church, Meader and Chapman had gone to distant parts of the country, and John F. Beard was the only remaining member of the firm to whom access could conveniently be had, but the partnership had never been dissolved, and whatever effect a notice- from Church, Meader and Chapman, that they would not assent to any adjustment or settlement of the affairs of the firm, might have had upon the authority of John F. Beard to make such adjustment, (a point in regard to which we give no opinion,) no such notice was given. The power and right of John F. Beard to- make such adjustment and settlement for the benefit of the firm was incontrovertible. The settlement in question is found' to have been made in good-faith, equitable, intended for the best interest of all concerned, and beneficial to said firm of Beard, Church & Company in fact and the whole proceeds of the claim against' the railroad company was duly applied in discharge'of debts due from the firm, and which had been secured upon .those proceeds by assignment or- attachment, long before any right or interest of the petitioner under his assignment had accrued.

We find no error in the judgment complained.of, and it. must be affirmed.

In this opinion, the othep judges concurred.

Judgment,,affirmed.  