The plaintiffs rest their claim upon two distinct grounds : first, a written agreement to pay for the lantern, when completed, whatever price should be fixed by certain arbitrators; second, an implied promise arising from the facts of performance and acceptance. The judge before whom the case was tided ruled that the release relied on by the defendants was a bar to the claim, unless the plaintiffs should show that “ subsequently to the release it was mutually understood that the lantern was to be completed and put up by the plaintiffs and paid for by the defendants.”

This ruling was evidently too strict. A promise to pay might be implied from the circumstances of the performance of the work and the delivery and acceptance of the lantern, without any such mutual understanding that it was to be done and paid for.

Again, assuming that the lega, effect of the release was to *358discharge the defendants from all obligations arising under the written contract, and from any verbal agreement or understanding; it was a discharge from them only as they then stood, in their executory state. It would not entitle the defendants after-wards to exact the performance of what was then executory; nor to receive it as performance, without any liability on their part to render the stipulated compensation, or its fair value. It does not appear that the parties understood or intended that the release should cut off the arrangement for the completion of the lantern ; and the plaintiffs undoubtedly did not so understand it. If, under such circumstances, the defendants knowingly permitted the plaintiffs to go on and fulfil the contract, without objection or notice to the contrary, and retained the lantern, they cannot refuse to pay for it. They would be presumed to have waived the discharge. The ruling of the court precluded ány consideration of the case by the jury in either of these aspects.

But we do not think the claim in suit is embraced in terms, nor that it was intended to be embraced in the release. The instrument is chiefly an acknowledgment of satisfaction, and, as such, is limited to the “ balance due on an award; ” which, upon the facts of the case, would exclude this claim. The recital of what that award covered cannot enlarge the application of the satisfaction. The words of release vvhich follow, of “ all claims and demands which we or either of us have against them,” do not necessarily nor reasonably include an agreement which was still executory on the part of the releasors, and upon which they could have no claim or demand until they should have first fully performed it on their own part. The case finds no release to them of their obligation to perform the work, and no notice that they would not be required to complete it. The ruling that the release was a bar to this claim was therefore erroneous.

The court also ruled that the plaintiffs “ could not recover upon the award.” The special cause of action was a contract to pay for the lantern, when completed and placed 'npon the defendants’ building, such sum as should be fixed by certain arbitrators. The plaintiffs allege that the parties had already been fully heard upon all matters in controversy, and that it was no4 *359understood nor intended that there should be any further hearing, but that the determination should be made upon the hearing already had, and upon personal inspection by the arbitrators. If this were so, the award, as made, would be effectual to fix the amount to be paid under the contract, in accordance with its own terms. The writing certainly does not provide for a hearing of the parties. It is, apparently, not an agreement of submission, but a new agreement in relation to matters already submitted and heard, to enable the arbitrators to award presently upon such claims as were already due, and subsequently upon that which required some further act of performance. It is a promise by the defendants to pay when so performed ; with a mutual consent to a supplementary award to fix the amount by the personal inspection and valuation of the arbitrators. The jury have found that the lantern was completed and put up within a reasonable time. The amount to be paid for it has been fixed, in the mode provided by the terms of the agreement. All the conditions necessary to a recovery upon the written agreement are thus supplied; arid we think that the plaintiffs would be entitled to maintain their action upon the special count. Exceptions sustained.