Preble v. Bottom ( 1855 )

The opinion of the court was delivered by

Bennett, J.

The plaintiff abandoned the job before it was completed, and the first question is, had he good cause for so doing P The defendant was to pay one hundred dollars by the 1st day of July, 1858, and the remainder when the work was done. No payment was made on the 1st of July, by the defendant, and the plaintiff made a demand of the sum then due on the 11th, and on the 14th of July before he left the job, and the defendant still neglected to pay. The breach of the contract on the part of the defendant was a good reason why the plaintiff might, at Ms election, abandon it, if he chose so to do ; and indeed the nonpayment of the hundred dollars might have rendered it necessary for the plaintiff to abandon it. It is objected by the defendant that there can be no recovery, but we think otherwise, and common justice requires that there should be. The defendant was first in fault, and the breach of the contract on his part is a good excuse for plaintiff.

The recovery should be for ay>ro rata compensation according to the contract price, and tMs was the rule adopted by the county court. The defendant is not in a situation to claim a deduction for any extra expense or trouble to wMch he might have been subjected hi getting the job completed, he being the only person in fault.

The judgment of the county court is affirmed.