Merrow v. Huntoon

By the Court. We think the replication to defendants’ plea in abatement, of the pendency of another suit for the same cause 'of action, denying, that the former suit was for the same cause of [14] action, properly tendered the issue to the country, containing, as it did, matter of fact, as well as law. .We do not see why this is not as proper in such a case, as in a similar replication to a plea in bar, of a former recovery for the same cause of action. We think, according to the English precedents, it is not necessary to alledge the grounds of difference in the replication, as seems to be intimated in the case cited in argument. Buffum v. Tilton, 17 Pick. 510. . In regard to the merits of this claim, it is perfectly well settled in this State, that in an entire contract for work, to be performed upon certain terms and conditions upon the land or buildings of the promisee, and which is performed, but not strictly according to the special stipulations, the laborer may nevertheless recover, upon a quantum meruit for the labor, and a quantum valelat for materials furnished, according to the price stipulated in the special contract, deducting therefrom such damages, as the other party may have sustained, by the failure to perform the work, strictly according to the contract. Dyer v. Jones, 8 Vt. 205. Gillman v. Hall, 11 Vt. 510. In the present case, the contract contains an express stipulation to the same effect; referring to the chief engineer of the road, to assess such damages as the company have sustained. We think the contract, of Merrow, and Huntoon and Dow, was made subject to the same condition. The reservation of a portion of the price of the work, both in this contract, and in that between the company and defendants, was not intended, we think, to become a forfeiture in any event; unless the work was abandoned by the promisers, or resumed by the engineer, under the power reserved in the contract to him, to do so. For, every other failure to perform, the contract seems to proyide the remedy by way of damages. And if the engineer is compelled to put on more force, in order to finish any section in time, the company are to be paid what it costs. It does not appear that the defendants suffered any damage, by plaintiff’s failure to perform the contract according to its terms. And the evidence showed, that the Railroad acquiesced in the delay of time. We think, therefore, the plaintiff was entitled to recover the sums kept back. In regard to solid rock, the contract is silent; but the contract of the parties showed, that it was expected the plaintiff would be paid [15] for that kind of excavation beyond the price fixed for loose rock, and it must have been left to tbe jury to estimate the value, as the parties had fixed no absolute price. But it seems almost certain, they expected the price to be in the same ratio of the other pric'es, and the jury have very nearly taken that, as their guide. We see no objection to the charge upon this point. The notice given by defendants to plaintiff to quit the work, does not seem to have been persisted in. For the plaintiff not only continued to work, but the defendants continued to pay him. Judgment affirmed.