The opinion of the court was delivered by
Wilson, J.
The contract upon which the plaintiff claims to-recover, required him to furnish the defendants good dry wood, piled up under their shed, for the year 1863, for the sum of $35, one half to be paid by the defendant Eunice, and the other half by the defendant Mary Eastman. It is conceded by the plaintiff, that he did not perform his contract according to its terms, but it-is insisted that the neglect of the defendants to notify the plaintiff they should not receive the wood upon the contract, and their using it and paying in part therefor, constitute such an acceptance *138of the wood as' should entitle him to recover the contract price'; 'The auditor has not found that the defendants accepted the wood upon the contract, and we are satisfied that the facts reported by him, do not show any such acceptance by the defendants as would render them liable for the stipulated price, or constitute a waiver by them of their legal rights under the contract. The plaintiff, from about the first of July, during the remainder of the year, furnished the last-block wood along from time to time, as he split it from green blocks, and when the defendants commenced using it, they, might well suppose the plaintiff would not long -continue to furnish them with wood of a different kind from that named in the contract. The wrongful neglect of the plaintiff on Ms part to perform the contract, placed the defendants in such • situation that they were compelled to use wood they had not contracted for, or perhaps suffer still greater inconvenience and damage in procuring it elsewhere. The defendants, therefore, -commenced using the wood, and continued to use it through that part of the season in which they could dry it without incurring -expense exceeding the whole value of the wood, expecting daily that the next wood the plaintiff should furnish them, would be •-such as the contract called for. But the plaintiff continued to furnish last-block wood in violation of his agreement, and the ••defendants, before the year expired, ceased to burn it. The plaintiff did not even ask the defendants if they would accept ■such wood upon the contract. He did not indicate to them in any manner before or while he was furnishing the last-block wood, ■ or while they were using it, that he claimed or should claim that such wood was according to the terms of the contract. The defendants did not become liable to pay the contract price by reason of their using the wood, nor by reason of their neglect to give further notice to the plaintiff that they should not -accept upon the contract an article which the parties had expressly agreed should not be furnished by the plaintiff, and would not be accepted by the defendants. The plaintiff, having stipulated both as to the kind of wood he should furnish ■■•and as to wood he should not furnish, had no -reason to suppose the defendants would accept the last-block wood, or that *139they had accepted it, at the contract price for good dry wood, nor that they would be liable to pay him any more for the wood than it was actually worth to them. The payment of the $17.50 under protest, was not a recognition by the defendants that anything more was due to the plaintiff.
The plaintiff, having failed to comply fully with the terms of the contract, was entitled to compensation for the wood only to the extent of the benefit actually received by the defendants, and the defendants have the right to have deducted from the contract price the amount of damages they have sustained by the non-performance of the entire contract by the plaintiff. Myrick v. Slason et al., 19 Vt., 121; Allen v. Hooker, 25 Vt., 137 ; Smith v. Foster, 36 Vt., 705. The auditor has found that the defendants have paid all the wood was worth to them; the plaintiff, therefore, is not entitled to recover.
The judgment of the county court is affirmed.