Pettigrew v. Bishop , 3 Ala. 440 ( 1842 )

ORMOND, J

The contract of the defendant in error, in this case, was to serve the plaintiff in error as an overseer, for a fixed compensation, and to recover, it is necessary he should shew either that he has performed the contract on his part, or that he has been prevented from doing so by the act of the opposite party. The attempt here is to recover compensation for a part of the time, without shewing any reason for his failure to perform the entire contract; to permit this to be done, would be to permit one of the parties to a contract, to make a material alteration in its terms, without the consent of the other. In Wright v. Turner, 1 Stewart, 29, this point was thus ruled in a case precisely like this. The cases of Green v. Linton, 7th Porter, 133; and of Pharr v. Beck, at the last term, depend on the same principle. See, also, the case of Cutter v. Powell, 6 Term Rep. 320, where the ■ point was thus ruled on great consideration.

•At the last term, in the case of Brumby v.- Smith, we held that a workman who had contracted- to do a job of work, to be paid on its completion, could not recover a pro rata compensation, the work having been destroyed by-fire without his fault, before it was finished.

For the error in the charge of the Court, the judgment must •be reversed; and the cause remanded.