Mitchell v. Curell

Bullard, J., delivered the opinion of the court, This is an action to recover the balance due on a building ° contract. There was a verdict and judgment for the plaintiffs, and the defendants appealed. jt appears that when the building was completed the *r ... . . r defendants received it without objection. They now urge that there was some slight variations from the contract. We ^ink the jury warranted in concluding that those deviations were assented to by the defendants, who took possession [255] without objections more especially as it appears that as much work was done as was called for by the contract. Where instal-ments of the price oí certain work are payable, either in cash or notes, at short dates, the payer is chargeable with the discounts on the notes thus received. The undertaker or builder cannot recover items for certain work done by him, which was-agreed in the contract should be done by the owner. Where the plaintiff declares, on a contract, he cannot recover* on a quantum meruit. The contract specifies the time at which different instal-ments of the price of the work was to be paid, either in cash or notes at short dates; and the defendants now complain that they are charged with discounts on notes given under this agreement. It is certain, that he who pays later pays less, and we understand the agreement to be, that on fixed days the proprietors were to pay certain sums or then-equivalent in notes at short dates. Now, the undertakers were under no obligation to lend their names to the defendants as endorsers of their notes, and we think the jury justified in concluding that the notes were to be discounted for account of the proprietors. But there is one item of the account which appears to us to have been improperly allowed, to wit: thirty-five dollars for setting up heads and sills. It was expressly agreed that that part of the work was to be done by the defendants themselves, and the plaintiffs cannot recover for it in this suit. In this respect the judgment is erroneous. The case of Morton vs. Pollard, cited by the defendants’ counsel appears to us inapplicable. It is true, that when the plaintiff declares on a contract he cannot recover on a quantum meruit, but in this case no offer was made to prove the value of the work different from the price fixed by the contract. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed; and it is further-adjudged and decreed, that the plaintiffs recover from the defendants the sum of six hundred and eighteen dollars and eighty-two cents, with costs in the District Court, those of the appeal to be paid by the plaintiffs and appellees.