Seargent v. Seward

Bennett, J. In regard to the plaintiff’s charge of forty-five dollars for building the barn, although the auditor finds that the job was not done fully according to the terms of the contract, yet he does expressly find that the defendant, when the barn was finished, did accept it on the contract, and by this we understand the auditor to'mean that the contract was fulfilled to the satisfaction of the defendant. This operates as a conclusive waiver on the part of the defendant of any claim for deduction from the contract price. This is a well settled principle. In regard to the item of thirteen dollars and four cents, in the defendant’s account, we think the county court were correct in disallowing it. Though the plaintiff had given a verbal order-to the Drurys to call on the defendant and request him to pay that sum to them on his account, yet he declined to accept the verbal [512] order to pay that sum, and would only agree to pay sucb sum as lie should owe the plaintiff on settlement, which he supposed was about oine dollars. He never did accept the order or pay the sum of thirteen dollars and four cents or any other sum, until this suit was commenced against him by the plaintiff to recover that precise sum, and after having notice that this suit was commenced to recover this sum of him, he then goes to the Drurys and they at his request charge him with that sum and indorse it upon the note which they held against the plaintiff. This transaction when made known to the plaintiff he refused to ratify. This, under the circumstances of the case, must be regarded as not having been done with the authority of the plaintiff. There was no acceptance of the order by the defendant till after this suit was commenced, and the commencement of the suit against the defendant must be regarded as an implied revocation of the parol direction or order. Under the decisions of this court, already made, the wife of the defendant was properly excluded as a witness. Judgment affirmed.