McVicker v. Dennison ( 1863 )

The opinion of the court was delivered,

by

Woodward, J.

It is with great reluctance we reverse the judgment in this little case, but to a majority of us it seems plain that the learned judge should have sustained the set-off that was offered. The bark-house was expressly provided for in the written contract of the parties, and McVicker was entitled to be paid for erecting it according to the contract. Dennison could not alter the contract by a notice not to erect it, even if that notice had been more specific than was proved. We are strongly inclined to believe the work was done in no good spirit, certainly not in what the judge assumed to be the spirit of the contract; but having been done according to the letter of the bargain, it should be paid for according to the letter.

This judgment is reversed, and a venire de novo awarded.

Lowrie, C. J., dissented.