Morrison v. Cummings

The opinion of the court .was delivered by Redfield, Ch. J. I. The deduction which the auditor and county court made in the allowance for the plaintiff’s work seems to us well justified, by the decided cases. That the plaintiff if he had not fully performed the contract, on his part, could at most recover, what the service was worth to the defendant, is well settled by the case of Dyer v. Jones, 8 Vt. 205, and the subsequent cases, which have followed the principles of that case. The deduction made, was then properly made, unless the defendant did something amounting to a waiver of claim, for this deduction, or an acceptance of the work. II. We think nothing appears in the case to show that, fully. The mere use of the kilns, without objection could not amount to this, inasmuch, as this was not an apparent defect, but only one to be discovered, by use, or by tests. After that, the parties did not meet, until the plaintiff had brought a suit, in New Hampshire for the work, for which he acknowledged regret, and a willingness to make amends, by withdrawing it. Nothing passed then which ought fairly to be construed as a waiver of all¡claims, for damages, for the non-performance of the work. And after that, the parties did not meet before the account fell into the hands of an attorney for collection. The payment made to the attorney could, at most, be regarded as an acquiescence, to that extent. He had a right then to be silent. We do not understand, by the auditor’s report, that he has allowed damages, by way of deduction, from the amount of the charge, beyond the amount of its original deficiency. We understand it to be a form of expression to show, that the work was as much less valuable at the time it was done by plaintiff, than it would have been, if done according to the contract, as all that is now apparently due. [491] And. the fact that these kilns were upon the defendant’s land, where he must of necessity keep them, and at least, pay their value, makes the use of them, less a constructive acceptance of them, than if they could have been altogether repudiated. Judgment affirmed.