Foster v. Worthington

The opinion of the court was delivered by Rowell, J. The defendant makes only two points in argument. One is, that raising the money by mortgage in the manner stipulated, in order to enable the plaintiff to prosecute and complete the work within the time fixed, and completing the work within that time, were conditions precedent, which, not having been performed, the plaintiff must show that he was not in fault in not performing, before he can recover anything, which he has not done, as his lack of funds and consequent failure to complete the work within the time, were due to his own fault in not negotiating a mortgage for the full balance of the contract price, the defendant rightly neglecting and refusing to execute one for a less sum. The other point is, that the rule of damages was wrong. As to the first point: The house was to be completed by the first day of September, 1884. It was not completed then, and the plaintiff kept on with the work as before until the latter part of the next month, when the defendant stopped his further work, and went on find completed the house herself. Now, conceding — what we do not decide — that these were conditions precedent, and that the defendant was in fault in the respect claimed, yet his right of recovery is not wholly taken away thereby; for when work is to be done by a time certain, the employer, by allowing it to go on afterwards, thereby treating the contract as still in force, waives the materiality of time, and can claim only such damage as he has sustained by reason of the delay, for it would be a fraud on the employé for the employer to lie by in such a case and see- the work go on and then step in and take the benefit of it without [69] paying for it. Sinclair v. Tallmadge, 35 Barb. 602; Nibbe v. Brauhn, 24 Ill. 268. As to plaintiff’s not raising money to pay himself by negotiating a mortgage on the house as stipulated, the defendant, by stopping plaintiff’s further prosecution of the work, and going on and completing it herself, has virtually refused to permit him to raise money in that way, and so she must pay in the ordinary way, if she is otherwise liable. As to the measure of damages: The plaintiff was permitted to recover what his labor and materials were worth to the defendant, she having taken the benefit of them, whereas defendant claims the way was, to estimate the whole work at the contract price, and deduct from that the amount requisite to complete the part left unfinished. But there are two reasons why we need not inquire into this matter. One is, that the defendant admitted in the court below, if she was liable at all, that the rule of damages adopted was correct; and the other is, that no exception was taken to the charge on the subject of damages. The defendant excepted only to “the refusal of the court to charge .as requested, and to the charge on the points of the requests not complied with”; but there was no request on the subject of damages. Judgment affirmed.