Gilman v. Hall

The opinion of the court was delivered by Bennett, J. Two questions are raised in the argument of this case : are the plaintiffs entitled to maintain an action for the balance due them ? and, if so, can such action be brought before the expiration of the year ? It is urged that the plaintiffs, having failed to build a part of the whole wall quite four and a half feet high, as they had contracted to do, have forfeited the right to recover. It will be seen from the report, that the auditor finds that the plaintiffs have built $60 worth of wall, at the prices stipulated, though a part of the whole wall was not quite as high as the contract required. Though the plaintiffs might not be able to recover on the''' special contract, not having specifically performed it on their part, still we think, according to the current of authorities, they may recover on a quantum meruit. It does not appear that the plaintiffs’ failure to build some portion of the wall quite four and a half feet high was from design. The defendant has the full benefit of their labor, and principles of common justice require that he should render an equivalent for the benefit received. The labour of the plaintiffs must, from the very nature of the case, be for the permanent benefit of the lands of the defendant, and cannot, in any [515] way, be made productive to the plaintiffs by a rescinding °f the contract. The parties cannot be placed in statu quo. The case of Dyer v. Jones, 8 Vt. R. 205, is an authority for this part of the case. The auditor finds that the plaintiffs have received $45,00, and that, as to the balance, the defendant, by the agreement, was to pay it when the wall was finished, or give his note payable in one year from that time, at his election. The plaintiffs made application to him, and he refused to give his note for any sum whatever. The effect of such refusal is to prevent the defendant from claiming any benefit from the alternative of the contract, extending the time of payment, and he becomes immediately liable upon such refusal. We think, therefore, that the judgment below should be reversed, and judgment entered on the report for the plaintiffs to recover the sum of $ 17,54, as reported by the auditor.