Scofield v. Grow

The opinion of the court was delivered by ROSS, Ch. J. This case presents the single question, whether the contract, found by the referee, is so far entire in its nature, that the plaintiff can recover only upon a full performance of the amount of work called for by it. In general terms, the contract binds the plaintiff to perform $60 woi’th of work for the defendant. It is not specific in regard to the time of performance, nor in regard to only a portion of the work to be performed. Whether the plaintiff should be paid partly in an organ, depended upon whether the parties could agree upon a contract, by which the plaintiff should purchase an organ of the defendant. Considerable of the contract, on both sides, was left for further stipulations or directions. What is written is not put in the most clear, and intelligible form. It contains no stipulation that a full performance by the plaintiff shall be a condition precedent to his right to recover for what he may have done in part performance ; nor, do we think, that the nature or terms of the contract, raise a strong implication of such a condition. By his specification the plaintiff claimed to have fully performed, on his part. But the referee has found that he had not fully performed. Neither does it appear that the defendant had ever called upon him to perform any further. Some of the work done, was performed under modifications of the contract, agreed upon between the parties. The true rule, governing this class of contracts, we think, is stated in Booth v. Tyson, 15 Vt. 515. After reviewing the cases to some extent, Judge Bedfield, in summing up, says : “ The principle of these cases seems to be, that, although the contract is, in one sense, entire, i. <?., full performance on the part of the promisor is of the consideration of the contract, yet, if it contains, neither expressly [285] or by strong implication, a condition of full performance, precedent to any right of claim for pay, and is of a uniform nature, and thus capable of just apportionment, the court will consider the promises independent andapportionable, and suffer a recovery for part performance, subject to a deduction for whatever damages the party entitled to claim full performance, may have sustained.” It is evident that the defendant may avail himself of the damages sustained by him, from the plaintiff’s failure fully to perform, by recoupment, or by a declaration in set-off. Brandon Manufacturing Company v. Morse, 48 Vt. 322, relied upon by the defendant, is an instance of the last part of the rule stated in Booth v. Tyson. The plaintiff had paid the defendant for what he had done under the contract, as the work progressed, and was allowed to recover for damages sustained by failure of full performance. It confirms, rather than militates against the doctrine of Booth v. Tyson. The report of the referee does not show that defendant claimed any damages for the failure of the plaintiff fully to pei-form his part of the contract. The plaintiff had performed so far as he had been called upon to do so, and had performed all the work specified in the contract. On these facts and principles, we think the plaintiff is entitled to recover the amount found due him by the referee. Judgment reversed, and judgment for the plaintiff for the amount reported with interest and costs.