Mitchell v. CurellMitchell v. Curell
delivered the opinion of the court,
This is an action to recover the balance duе on a building ° contract. There was a verdict and judgment for the plaintiffs, and the defendants appealed.
jt appears that when the building was complеted the *r ... . . r defendants received it without objection. They now urge that there was some slight variations from the contract. We ^ink the jury warranted in concluding that those dеviations were assented to by the defendants, who took possession
The contract specifies the time at whiсh different instal-ments of the price of the work was tо be paid, either in cash or notes at short datеs; and the defendants now complain that they arе charged with discounts on notes given under this agreemеnt. It is certain, that he who pays later pays less, аnd we understand the agreement to be, that on fixed dаys the proprietors were to pay certain sums or then-equivalent in notes at short dates. Now, the undertakers were under no obligation to lend their namеs to the defendants as endorsers of their notes, and we think the jury justified in concluding that the notes were to be discounted for account of the proprietors.
But there is one item of the account which appears to us to have been impropеrly allowed, to wit: thirty-five dollars for setting up heads and sills. It wаs expressly agreed that that part of the work was to be done by the defendants themselves, and the plaintiffs cannot recover for it in this suit. In this respect thе judgment is erroneous.
The case of Morton vs. Pollard, cited by the defendants’ counsel appears to us inapplicable. It is true, that when the plaintiff declares on a cоntract he cannot recover on a quantum meruit, but in this cаse no offer was made to prove the valuе of the work different from the price fixed by the contract.
It is, therefore, ordered, adjudged and deсreed, that the judgment of the District Court be reversed; аnd it is further-adjudged and decreed, that the plaintiffs recover from the defendants the sum of six hundred and eighteen dollars and eighty-two cents, with costs in the District Court, those of the appeal to be paid by the plaintiffs and appellees.