| Miss. | Mar 15, 1901
delivered the opinion of the court.
Rosenbaum contracted with Wheeler & Watts' to build for him two houses, they to furnish all the labor and materials, and he to pay them $3,000, but he was to pay them of this sum, at the end of each week, fifty per centum of the value of materials and labor used during that week in the construction, and to pay them the balance of the $3,000 on completion of the buildings. This contract was made on November 2, 1898, and the contractors proceeded with the work, buying some of the materials from the appellee, Carlisle, who gave written notice to Rosenbaum of the debt of the contractors, so as to bind what he might owe them.
On March 23, 1899, the contractors, Wheeler & Watts, finding themselves unable to complete the work, agreed with Rosenbaum to rescind, on the terms of mutual release of obligations, and a sale by them to him of all material then on the premises and not worked into the buildings, and that Rosenbaum should take the work in charge, complete it, and if there was any surplus of the $3,000 contract price he should pay Carlisle out of it. Rosenbaum did complete the work, but it cost him $1,000 over and above the contract price of $3,000. At the time of this agreement of rescission, some of Carlisle’s
Wheeler & Watts might, so far as they were concerned, release Rosenbaum at their pleasure, but they could not affect the status of Carlisle, fixed by his notice. The jury found that Rosenbaum owed the contractors to an amount equaling the price of the material, and we cannot disturb their verdict on the facts. Because Rosenbaum lost $1,000 on his contract, we sympathize with him. It was, however, his misfortune, and we cannot subscribe to his view that Carlisle had to wait the end and be paid only if there was a surplus, on completion, for his material used. Under this view he could not possibly be harmed by the instructions as given and refused. ■
Affirmed.