Austin v. Wheeler

The opinion of the Court was delivered by Redfield, J. This is an action of book accoúnt to recover a balance claimed to be due for framing and finishing a barn, at a price stipulated, and to be paid for in a particular mode. We do not think the nature of this contract will preclude a recovery in this form of action, if the labor has been performed, and there is a part of the stipulated price unpaid. The auditor finds there is $3 of the price unpaid, and that the contract was so far performed, that the defendant acquiesced in it, as a full performance under the contract, although it was not performed strictly according to the terms stipulated, — and that the deficiency is in fact more than $3 ; but it is in the mode, and not the extent, of performance. But this court always hold the parties to their own construction of their contracts, — as evidenced by their acts at the time of performance. They make their own conditions, they best know how they understood the terms used, — and to say that, in a case like the present, after acceptance of the thing without objection at the time, and long acquiescence, until a controversy arises about the pay, the parties can then be thrown back to contest the matter de novo, is quite at variance with the long settled principles of the law of contracts. If one sees work going on from day to day before his eyes without objection, and finally accepts the thing by silent acquiescence, he must be bound by it. To establish a contrary rule would be to invite interminable litigation. Judgment affirmed.