(аfter stating the facts). This is an action by a firm of contractors against Lawrence county to rеcover the sum of $300, which they claim is the balance due them by the county for building a courthouse. Thеre is no dispute about the facts. The county admits that it agreed to pay plaintiffs a stipulated sum for completing the courthouse, that the courthouse was completed before thе action commenced, and that it has not paid the $300 claimed. But the county contends that, аs the work was not completed within the time specified in the contract, the plaintiffs, by virtue of thе terms of the contract, became liable to damages at the rate of $10 a day for еach day they were in default; and that these damages equal! or exceed the amount сlaimed by the plaintiffs. On the other hand, the plaintiffs contend that the county waived the right to claim such damages: (1) By making a payment on the work after .the day specified for its completion, and after it was known that the contract had not been complied with in that respect. (2) By permitting the circuit clerk to take possession of a room in the building for his office when the building was not cоmpleted, and had not been accepted. (3) By directing and permitting the building to be used and occupied by the circuit court before it had been accepted by the county commissioners.
The circuit court sustained the first and third grounds of plaintiffs’ contention, but after considering the mattеr we are of the opinion that neither of these contentions should be sustained. As a generаl rule, a waiver, to be binding, must either operate by way of estoppel, or be supportеd by a valuable consideration. 28 Am. & Eng. Enc. Law (xst Ed), 531. Now, making a part payment of the amount due the contractors after the time specified for the completion of the building, although the building was still incomplete, was not inconsistent with the claim for damages on account of delay in completing the building, for the county still retained enough of the consideration to cover the damages claimed by it on that account. The fact that the building was not completed within the time required did not justify the county in refusing to make any further payments, for by the terms of the contract payment for the work was to be made as it progressed, and the entire consideration was not forfeited by the failure to complete within the time specified. The amount of damages that the cоunty could recover in such event was fixed by the contract, and the county would not have been justified in withholding a much larger amount than was sufficient to cover the damages arising from such default. Thе county is not asking judgment against plaintiffs for a return of the money it paid them, and we can therefоre see nothing in such a payment that could have misled the plaintiffs in any way.
Nor is the fact that the county authorized the clerk to use an office in the building and allowed the circuit court to use the building before it was accepted inconsistent with the claim for damages set up by the cоunty in this case. This possession bv the clerk and the use of the building by the court was with the consent of the contractors. It was directly to their advantage, for it prevented a further accumulation оf damages. The county is not asking for damages for delay in completing the building after the clerk tоok possession, or after the building was used as a courthouse, but for the damages that under the contract had already accrued at the time this partial possession of the building was takеn, and we are not able to see anything in such possession that is inconsistent with such claim.
As the reрort of the commissioners shows that the contractors had performed their work well, and that thе delay was more or less unavoidable, we should on this account be-glad to sustain the judgment of the circuit court, but we have no power to set aside a valid contract in that way. It may be а hardship for the contractors to have to pay damages for the failure to complete the building by the time specified in the contract when the delay was caused by a failure of the railroad to deliver material they had ordered, but they took that risk when they made the cоntract. It is not shown that the county or its officers misled or hindered the contractors, or was in any wаy responsible for the delay, and it has the right to insist on the enforcement of'the contract as made.
Deducting the damages as provided in the contract for the admitted delay, it seems to us that the county owed the contractors nothing, and that the jury should, under the facts in evidence, hаve been directed to find for the defendant. The judgment is therefore reversed, and the cause remanded for a new trial.