Connelly v. Devoe

Park, J. It appears by the finding of the court that a contract between the parties existed till the 22d day of July, when “the defendant put an end to it.” The limitation in the original agreement had been waived by the defendant from time to time, owing to the unexpected difficulties the plaintiff encountered in digging the well, till the 16th day of July, when the agreement stated in the finding of the court was made between the parties. We cannot say, as a matter of law, that this substituted agreement was not valid. There Aras no actionable breach of the original contract when it was made, for the breach had been waived and the time extended. The defendant contends that this was not so. He insists that the court has not found that the defendant Avaived the time mentioned in the original agreement. It is true that the court has not so found in terms, but it -has found what is equivalent. It is found that after the time limited in the original agreement had expired, the defendant, at his own option, furnished plank to prevent the well from continuing to cave. At that time it was evident that considerably more time Avould be required to finish the well than was at first supposed. The work could not be completed Avithout such additional time, and the furnishing of the plank shows that the [576] defendant expected that it would he completed and consented to the unavoidable delay. The court has found that the work progressed with the knowledge and acquiescence of the defendant to the 16th day of July, when the agreement in question was mad'e, which'of itself was a waiver of all past delinquencies, and that this agreement subsisted on the 22d day of July, when “ the defendant put an end to it.” We think it clearly appears that the defendant waived the time mentioned in the original agreement. But it is said that there was no consideration for the substituted agreement, and that therefore it had no validity. The abandonment of the original contract then in force, pursuant to the understanding of the parties, to substitute the new agreement in its place, was a sufficient consideration. And further, it was for the interest of the defendant that the work should be completed. He had doubtless made -a good contract. Should the work stop where it was he would lose the benefit of it. The injury he had experienced by the delay was -simply the loss of the benefit of his well for a few days. It was now absolutely certain that that benefit could not be experienced for some time to come, whoever might do the work. The plaintiff could do it as quickly as any one. By so doing the defendant would reap the fruits of his contract. Surely it was for his interest to make the agreement. And’ besides, the defendant suffered the plaintiff to go on with the work after the agreement was made, under the expectation of being allowed the extended time for the completion of the work. We think there was sufficient consideration for the agreement. 2. The defendant prevented the plaintiff from performing the contract, and now sets up the non-performance thereof as a matter of defence to a suit on the contract. Under such circumstances it was optional with the plaintiff to rescind the agreement, and resort to indebitatus assumpsit for work and labor performed under the contract at the defendant’s request. Parsons, (2d Vol. on Contracts, page 523,) says: “If one party is.prevented from fully performing his contract by the fault of the other party, it is [577] clear that the party thus in fault cannot he allowed to take advantage of his own wrong, and screen himself from payment for what has been done under the contract. The law therefore will imply a promise on his part to remunerate the other party for what he has done at his request.” In the case of Moulton v. Trask, 9 Met., 577, Shaw, C. J., says: — “ The case put by the judge was, that if the further performance of the contract had been dispensed with, or prevented by the defendant, the plaintiff might declare in indebitatus assumpsit for the part of the money already earned conformably to the terms of the contract. The instruction rightly proceeded on the ground that if the defendant had, without justifiable cause, prevented the further performance of the contract, the plaintiff, by bringing his action for the part of the year during which the son had served, thereby assented to the act of the defendant, and the contract was thereby determined.” See also Giles v. Edwards, 7 T. R., 181; 2 Greenl. Ev., § 140; Hill v. Green, 4 Pick., 114; 2 Smith’s Leading Cases, 40. The defendant further claims that this principle applies no farther than to the work done after the substituted agreement was made. But that agreement was substituted in the place of the original agreement. The original agreement was abandoned, and the new agreement took its place by the understanding of the parties. The new agreement therefore covered all the ground occupied by the original agreement. A new trial is not advised. In this opinion the other judges concurred.