Lee v. Ashbrook
14 Mo. 378
Mo.
1851
Check Treatment
Napton J.,

delivered the opinion of the court.

The most material point, touching the law of the case, rises from the second instruction given by the court.

The old rule in relation to contracts, which in their nature were entire and indivisible, required from the plaintiff an entire performance of his part of the contract, as a condition precedent to his recovery, unless some legal excuse was shown. This rule was fully adopted in this State in early cases, especially in Helen vs. Wilson (4 Mo. Rep., 41.) If by the terms of the contract, certain sums became due upon performance of separate part of the work, the rule was not applicable and even where the contract is entire, the modification of the rule as laid down by the circuit court in this case is certainly more consonant to equity and more likely to be practically enforced by juries. Although a party has abandoned his Work, before completion, without just cause cr legal excuse, yet if the other party to the contract receives it and makes use of it, and is benefitted by it, he ought still to pay the value *386of the work, not exceeding contract price, if that value exceeds the damage he has sustained by reason of the failure to complete the work. Butler vs. Turner, 6 N. H. Rep., 481.

This is the only point upon which the instruction given by the court, upon the trial varié d from those asked by defendant. The other instructions substantially declare the law to be as asked by the defendant — although not so much in detail, nor perhaps so definite.

The verdict of the jury is not entirely satisfactory to our minds — but it is not for such a cause, that we feel authorized to set it aside, especially as the plaintiff remitted about $210 and all the interest, thus reducing his recovery to a sum below the amount sufficient to cover the worth of his labor and materials. Both parties are thus made to bear a portion of the loss. We shall not disturb the verdict.

Judgment affirmed.