41 Vt. 134 | Vt. | 1868
The opinion of the court was delivered by
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
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.