Jackson v. Cleveland

15 Wis. 107 | Wis. | 1862

By the Court,

Cole, J.

If the contract set forth in the complaint is construed to be an entire, indivisible one, which the respondents must perform or show some good legal excuse for not performing it according to its terms, as a condition precedent to their recovering anything upon it, then obviously the action cannot be maintained. But if, on the contrary, it appears from the terms of the agreement, that the parties to it did not intend to make the entire performance of it a condition precedent to receiving or being entitled to a ratable recompense for the work actually done, then it can be sustained. That the contract is of this latter character, we think is clear from its various stipulations. Take the following clause: “And said parties of the first part further covenant and agree with said party of the second part, that for a failure to make and complete the work herein contracted to be done, within the time fixed for its completion, or in case it shall appear to said engineer that the work is not progressing with sufficient rapidity to insure its completion within the time specified, then said party of the second part may employ other or additional help to hasten the completion of the work, and the expense of such help shall be paid by said party of the first part to said party of the second part; or the said engineer may in such case determine that the contract has been abandoned by said party of the first part, and in the event of such determination, this agreement on the part of said party of the second part shall be null and void; and said party of the second part, in such case, shall have full right to contract with any other person or persons instead of said party of the first part, for the completion of the work thus abandoned.”

In a subsequent clause of the contract, it was agreed that the chief engineer should, as the work progressed, make monthly estimates, as near as practicable, of the value of the work done, which estimates were to be paid as therein specified.

The complaint stows that the engineer determined that the contract had been abandoned by the respondents, for reason that the work was not progressing with sufficient rapidity. But it further alleges that the respondents performed work and furnished materials to a considerable value before such determination by the engineer, and that the appellant had received the benefit of such work and materials, and had been paid therefor by the railroad company. Now is it not the most rational and natural construction to be placed upon this agreement, to say that the parties thereto understood and intended that as the work progressed and the materials were furnished, the subcontractors should be paid therefor by the principal contractor ? The work to be performed was of great magnitude and importance. Certain sums were to be paid upon estimates of separate parts of the work performed. Monthly estimates were to be made as the work progressed, and the respondents were to receive ratable compensation for what was done. In case the work did not progress with sufficient rapidity to insure its completion within the time specified, the principal contractor reserved to himself the right of putting on additional force to secure its completion, which additional force was to paid by the subcontractors. But it was only the expense this extra help that was to come out of the moneys due them on the contract.

In the event the engineer declared the contract abandoned, then the same was to be no longer binding upon the appellant, but he was to have the right to contract with any other person instead of the respondents for the completion of the work abandoned. But although the contract should be declared abandoned, yet we cannot think the parties intended in that case that the respondents should forfeit all rights under it, and lose the value of such labor-as they might have performed while the same was in force. It is more in accordance with the equity and reason of the case,» to say that under such circumstances a partial performance entitled the respondents to a partial recovery. So far as the contract was performed, and was actually beneficial to the appellant, justice would seem to require that he should make compensation, although, he might have the right to for the completion of the work with other parties case ^ was abandoned. It seems very analogous in rea-gon and principle to the doctrine laid down in Perkins v. Hart, 11 Wheat., 237; Cunningham v. Morrell, 10 Johns., 202; Tompkins v. Elliot, 5 Wend., 496; McLure v. Rush, 9 Dana, 65; in which cases it was held that where an entire work was to be done for a certain sum, of which parts were to be paid at fixed periods during the time in which the work should be going on, the performance was neither wholly dependent nor wholly independent, but a ratable part of the money might be recovered upon showing a ratable performance. And this construction of the contract derives very great force from the clause which gives the appellant the option to put on additional help at the expense of the respondents, to complete the work in time.

It is also alleged in the complaint, that the appellant promised to pay for the work performed whenever he should get a settlement with, and-himself be paid therefor by the railroad company. It is averred that he has been paid, and yet that he refuses remuneration for the value or benefit which he received. It is by no means clear that this promise, under the circumstances, would not support the action, even were it held that an entire performance of the contract was a condition precedent to any recovery. But the consideration of this question becomes immaterial, in view of the construction which we have put upon the agreement set forth in the complaint.

The order of the circuit court overruling the demurrer, is therefore affirmed.