Nibbe v. Brauhn

Breese, J. The petition in this case sets out a contract to complete the building by a day certain—the first day of June, 1857. It then avers, that whilst the building was in progress, an alteration in the plan was insisted upon by the appellant, involving an additional expenditure of one hundred dollars, and enlarging the building to some extent, in regard to which there was no stipulation as to the time when the whole work, including the enlargement, should be completed. Still, the original contract provided that the building should be completed by the first day of June. The answer alleges, that though nothing was said in the agreement about the alterations, when the work was to be completed, yet it was understood by the parties, that it was to be finished at the time agreed upon in the original contract, that is, by the first day of June. •This, then, must be considered an admission, that the building was to be completed by the first of June. A precise time, then, is shown, within which the contract was to be completed. That parties, while work is in progress, may extend the time for its completion, cannot be questioned. Owing to the alterations demanded by appellant, further time became necessary for the completion of the building, and it was extended by agreement, to the first day of September, 1857, at which time it was completed and accepted by the appellant, and therefore, the contract was as fully performed as though it had been finished on the first day of June. We would hold, that appellant having permitted the contractors to proceed on the work after the first day of June, and accepting the work at a future day, has waived the performance on the day fixed, and that a mere extension of time of performance, does away with none of the stipulations—an agreement to extend the time waives nothing more than the time of performance. The appellant makes the point, that the petition is defective, in not averring that the work was completed within the time required by the contract. But this is not assigned for error, and therefore cannot be noticed. The decree gives a lien from the eighth day of March, 1857, ten days prior to the time of making the contract. This would vitiate the decree if there were other parties interested in this proceeding, who might be affected by it; but there are no other parties on the record, than the material man or contractor, and the owner of the lot, and of course no person can be injured by the error. It is not sufficient to reverse the decree, and it must be affirmed. Decree affirmed.