Wolf, Carpenter & Angel v. Gerr

Day, J. 1. contbact: damages.' The count of the answer demurred to sets up a good cause of action against the plaintiff. It is now the set-tied doctrine' in this State that a party who has failed to perform in full his contract may recover compensation for the part performed, less the damages occasioned by his failure. Pixler v. Nichols, 8 Iowa, 106; McClay v. Hedge, 18 Id., 66; Jemmison v. Gray, 29 Id., 539. The answer in this case alleges that defendants removed 2180 cubic yards of earth, for which they were to have, under their contract, the sum of $872, and that they have been paid thereon only the sum of $550. [342] 2 _._. pleading. [341] The contract provides two courses, either of which the plaintiffs may pursue, in the event of the defendants’ failing to prosecute the work with sufficient energy to insure its com [342] pletion by the time agreed upon. They may place such force of men upon the work as will in the'opinion of the engineer secure the completion of the work in the time specified in the contract, and deduct the expenses so incurred from the amount agreed to be paid defendants; or they may declare the contract forfeited and retain the reserved percentage of ten per cent as liquidated damages. But in either ease the defendants are entitled to pay for what they do, less the damages which result from their failure, whether that damage be the ten per cent reserve, or what plaintiffs may pay to complete the contract. It was not necessary that defendants should assign any reason or excuse for the breach of the contract. They are entitled to pay for what they do, less damages occasioned, without reference to the cause of the breach of contract. Nor was it necessary that defendants should aver that plaintiffs had sustained no damage by the breach of the agreement. If plaintiffs have sustained damage, they must aver and prove that fact. The law does not cast upon defendants the burden of proving a negative of this character. The demurrer should have been overruled. Beversed, [347] held that a county judge is authorized to receive money paid