Merriweather v. Taylor , 15 Ala. 735 ( 1849 )

DARGAN, J.

We think it very blear, that the defendant Was not precluded from showing, by wáy of defence; that the well was not completed according to .the terms of the contract, agreed on between the plaintiff, and himself, although1 he gave the note after the work was done, if at the time he executed the note, he believed the work was completed according to the agreement. But as the well was accepted, and used by the defendant, the plaintiff was entitled to recover as much as the work was reasonably worth, although the work was not performed, strictly in accordance with the provisions of the contract. The .rule is, that a recovery may be had for work and labor, when the defendant has .accepted, the work, although it does not amount to a complete performance of the'special contract. Thomas & Trott v. Ellis & Co. 4 Ala. 108; 2 Greenl. Ev. § 104.

This is not denied by the defendant’s counsel, but it is insisted, that a recovery in such a case, can only be had on' the common counts, for work and labor done; and as the plain-, tiff has not decláred for work, and labor, he cannot recover. It is true, that if the plaintiff had declared on the contract, before he could entitle himself to a recovery, it would have been incumbent on him to show, that he had performed the work according to the agreement; and if he failed to do this, he could not recover, although he might have shown, that the defendant had accepted, and used'the work. ' '

But the plaintiff does not sue on the special agreement: he sues on the note given for the work, after it was done. The performance of the agreement, is, then,, the consideration of the note which is declared on, and the evidence tending to show, that the work was not done according to the contract, impeaches the consideration, of the note, and to avoid a recovery in toto, he must show, that- the consideration has entirely failed. If he only shows a partial- failure of consideration, he: can only reduce the. amount.of the recovery fro tanto, and the plaintiff: is. entitled to recover the amount, that-the consideration received by the defendant was actually worth. ■ The plaintiff, therefore,-was entitled to, recover, although he has declared on the note alone, as much as the work was reasonably worth. The- charge of the presiding judge, however, denied the right of the plaintiff to recover, notwithstanding the work hah been accepted by the defendant, unless he showed, that; the work was completed according to t.hp- agreement, Iii this.the.court erred,,and the judgment must be reversed, and; the cause remanded.