Mason v. Town of Andrews

Clarkson, J. It .may be noted that no time'is specified in tbe contract when tbe work should be completed. To be sure tbe contract was to make a complete audit of tbe books of tbe town, but this must be done within a reasonable time. If this was not so, where no time is mentioned, a party who is employed to do certain work, may take an unlimited time — such is not tbe law. 13 C. J., p. 685, sec. 782, says: “Tbe question as to what is a reasonable time for tbe performance of a contract, fixing no time for performance, depends on tbe nature of tbe contract and tbe particular circumstances. In deciding whether an undertaking has been performed within a reasonable time, tbe material difficulties and hazards attending it, tbe amount of diligence used, and frustrated attempts at performance should be considered. Perhaps as accurate a definition of reasonable *138 time as may be given is that it is sucb time as is necessary conveniently to do what the contract requires should be done.” Holden v. Royall, 169 N. C., 678; Lambeth v. Thomasville, 179 N. C., 456; May v. Menzies, 186 N. C., 149; Colt v. Kimball, 190 N. C., 173; Cowles v. Hagerman (New Mexico), 110 Pac. Rep., 843. It is admitted that the contract between the parties was to make a complete audit of the books of the town. The defendant alleges that the charge was at least twice as much as was necessary; that as a result of the numerous errors and defects of the pretended report and audit it will he necessary for defendant to have the books re-audited. Defendant, in its letter to plaintiff stated that it was anxious to get the matter adjusted on a reasonable basis. Defendant did not deny that plaintiff was entitled to some pay for the audit, nor was the audit rejected in the entirety. We think that there was sufficient evidence to be submitted to the jury that the audit was not complete on account of mistakes and inaccuracies. The court below on this aspect charged the jury that if they should find such inaccuracies and mistakes did occur this would be considered as a circumstance as to the amount of time that was devoted to the work and not as to the value of the audit. We cannot so hold. The charge is not altogether clear, but it would indicate that it would make the town pay for the time plaintiff took in making the mistakes and inaccuracies in the audit. But we think, under the facts and circumstances of this case, the mistakes and inaccuracies, if there were any, go to the value of the audit. The contract was to make a complete audit — the time taken defendant claimed was unreasonable. Defendant received the audit, but objected to the time taken and mistakes and inaccuracies. If there, were mistakes and inaccuracies, as the evidence tended to show, plaintiff would be entitled, under the contract, to the amount per diem as agreed upon for a reasonable time in making the audit less so much as it would take to reform the audit and make a complete audit, in accordance with the contract. The principle here is well stated in McCormick v. Ketchum, 48 Wis., p. 646, where the following charge is sustained: “If the plaintiff’s services were worthless, or of no value, he is not entitled to recover anything, but if they are of value, he is entitled to recover that value.” This matter has been discussed recently by Varser, J., in Moss v. Knitting Mills, 190 N. C., p. 648. It is there said: “The reasonable cost of the labor to remedy any defects for which plaintiff was responsible, was -the correct rule under the instant case.” Howie v. Rea, 70 N. C., 559. For the reasons given, there must be a New trial.