2. But it was held, that where the plaintiff recovered a balance due on equitable grounds, and not on the ground of strict and full performance of the contract, he was precluded on like equitable *grounds from recovering more for the stock portion of the contract than its market value at the commencement of the action.2

within thirty days after the completion of the contract, the company were not bound to make any tender of the stock, as in case of contracts for specific articles. But that it was a payment in depreciated currency, and no tender necessary. In a recent English case, Re Alexandra Park Co., 12 Jur. N. S. 482, where the contractor stipulated to accept a portion of his pay in stock, at the election of the company, it was held he was not bound by such an election after the company was ordered to be wound up as insolvent, as the shares thereby become extinguished.

2 Barker v. T. & R. Railw., 27 Vt. R. 766. In this case the court say: "If the defendants have, upon reasonable request, declined paying the amount due, in their stock, as stipulated, it would seem but reasonable they should pay the amount in money.

"1. This is the general rule in regard to contracts payable in collateral articles, estimated in currency, and not delivered.

"2. The stock of a corporation is but a certificate of such a sum being due the bearer. And when the party stipulated to pay in his own paper, if he refuse, suit may be brought immediately, although the paper was to have been on time, if given. But it was never supposed the party could reduce the recovery, by showing his paper depreciated in the market. This would be virtually giving the difference to the other stockholders. This would be the rule which should be applied if defendants are wilfully in fault. If it were the stock of another company, no doubt, all which could be recovered is the value of the stock in the market. Certainly, this is the general rule in regard to stock. And, perhaps, that rule should be applied to the stock of the defendants, if it appears they have not wilfully and unreasonably refused to deliver the stock. Ante, § 38.

"But the recovery here is not allowed upon strictly legal grounds, upon the strict and literal performance of the contract on the part of the plaintiffs. It is rather upon equitable grounds that any recovery and apportionment of the contract is allowed for anything less than full performance. By the terms of the contract the defendants had a right to retain the tenth part reserved until full performance. And, although it has not been regarded as a strict condition precedent in some of the cases (Danville Bridge Co. v. Pomeroy, 15 Penn. St. 151), still it is a stipulation in the contract, for the full performance of which the defendants had the right to insist, and for doing which they are not to be themselves regarded as in fault. The defendants, too, were justified in refusing to pay any deficiency in the work at the time of the demand; so that while we excuse the plaintiffs from full performance of their contract, as a strict condi

*3. So, too, where the work is to be paid partly in stock and partly in money, if the money part be overpaid, even by doing a tion precedent, and allow them to recover to the extent of what they had done, on the equitable ground that they had in good faith attempted to fulfil their undertaking, and supposed they had done so, and only failed by mistake and misapprehension, which should not, under the contract, defeat the recovery in toto, but only subject it to an equitable deduction for all damage sustained by defendants, it seems to us that it should form a part of this equity to the defendants, not to be required to pay more for this stock, even if it were their own, than it was in fact worth, or could have been made to benefit the plaintiffs.

"As we now hold, the plaintiffs were, at the time of the demand, entitled to recover, upon equitable grounds, a sum less than the whole price. But they demanded the whole price, and the defendants refused. The demand itself was unreasonable. Is it certain a reasonable one would have met a similar fate? It has been held the demand must be reasonable, to render the refusal unreasonable. Jameson v. Ware, 6 Vt. R. 610. As, therefore, the refusal of defendants seems to have been not altogether without good excuse, and in allowing an equitable recovery, in a case like the present, one of the first requirements seems to be, that no injustice shall be thereby visited upon defendants, it would almost necessarily follow that we should not suffer the plaintiffs to recover more for the work really done by them than they could possibly have realized if they had been paid at the time, according to the contract. And, as we set up a basis of recovery upon equitable grounds, and one not contemplated in the contract, we should not visit the defendants with a judgment which will make them worse off than if they had been allowed to pay the sum found to be due upon this equitable basis, after it is declared, according to the stipulations of the original contract. If this view is sound and equitable, and we see no reason to doubt it, the plaintiffs, as to the stock portion of their judgment, are entitled to the highest price the stock bore after the suit was commenced, and before the final judgment, or, if they choose, the court will strike out that portion of the amount reported, and require the certificates of stock still to be delivered; and if defendants refuse, on reasonable request, enter up judgment for the full amount." But if the contractor perform extra work he is entitled to recover for that, in money, upon an implied promise, notwithstanding by his contract he was to accept part of his pay in stock for all work done under the contract. Childs v. Som. & Ken. Railw., Cir. Ct. U. S. Maine District, May 1, 1857. 20 Law Rep. 561. In the case of Cleveland & Pittsburgh Railw. v. Kelley, 5 Ohio St. 180, it is held, that where one fourth of the amount due the contractors is to be taken in the stock of the company, and the company refuse to deliver the stock on request, they are only liable for the market value of the stock at the time it should have been delivered. The court profess to base their opinion upon the ground that in contracts of this character there is not understood to be any election reserved by the company to pay either in their stock, or in money, but that it is an absolute undertaking to deliver so much stock as shall, at its par value, be equal to one fourth the amount due the contractor.

portion of the work, which the party reserved the right to do in order to hasten the work, it will only reduce the stock payment It does not readily occur to us how this relieves the question from the apparent violation of principle, in allowing the company to refuse to give certificates of their own stock which they have contracted to do, and at the same time pay less than its par value. It is, in ordinary cases, equitable, no doubt, and always where the refusal is upon the ground that nothing is due the contractor. Ante, § 121, n. 2.

The point of the decision is thus summed up by Mr. Justice Swan. "For these reasons we are of the opinion that no such election was contemplated by either of the parties when the contract was entered into; that the law relating to trade notes and contracts of a like kind, has no application to the agreement between these parties; that it was an exchange of work for stock, in which monetary. terms were necessarily used, not for the purpose of expressing real values, but as the only mode of expressing quantities and proportions; that the fourth to be taken in stock was not a money indebtedness, but a stock indebtedness; and, consequently, that the company could derive no benefit from the increased value of the stock, and could suffer no loss by its depreciation; the damages which the contractors suffered from the non-delivery of the stock being its market value."

See also Boody v. Rut. & Bur. Railw. (Cir. Ct. U. S.), 24 Vt. R. 660. In this case it was held, that the defendants having given their creditors a mortgage upon their road, after the contract with the plaintiff, did not excuse him from accepting the stipulated proportion of the payments in stock.

Nor can the contractors, in such case, refuse to receive the stock, because the legislature, in the mean time, altered the charter of the company, by which the capital stock and debt of the company were increased; nor because the company voted not to pay interest on the stock, in money, as they had before done, it not appearing that the value of the stock had been affected by either. Moore v. Hudson River Railw., 12 Barb. 156.

And where the company, in settlement with a contractor, agreed to pay him a certain amount, in stock, or the bonds of the company, at his election, the company retaining the same as security for certain liabilities on account of the contractor, and gave the contractor a certificate of such stock, with an agreement indorsed, to exchange it for bonds, at his election, and the certificates were then returned to them, as their indemnity; it was held, that the company were bound to deliver the bonds, notwithstanding the treasurer had entered the shares in the books of the company as the property of the contractor, and they had in consequence been sold upon execution against him. Jones v. Portsmouth & Concord Railw., 32 N. H. R. 544.

A contractor who agrees to take a portion of his pay in the bonds of the company, has no such interest in any question, in regard to their validity, as will prevent a court of equity from enjoining those of a county, which had been delivered to the company without a proper compliance with the conditions of the statute, under which the subscription was made, the contractor having had

dollar for dollar, and not according to the market value of the stock at the time.3

*SECTION XVIII.

Time and Mode of Payment.

1. No time specified, payment due only when | 3. But if company pay monthly, such usage work completed. qualifies contract. 2. Stock payments must ordinarily be de- 4. Contract to build wall by cubic yard, immanded. plies measurement in the wall.

§ 122. 1. Where no time of payment is specified in terms in the written contract between the parties for the construction of a portion of a railway, it was held, that looking to the contract alone the contractor could not call for payment, either of the cash or stock portion of the contract, until a complete performance of the contract on his part.1 Or, upon the most favorable construction, until some distinct portion of the work, for which the contract fixed a specific price, was accomplished.1

2. In regard to the stock portion of the payments, a special demand was necessary before the contractor can maintain an action for it.1

3. But where it appeared that the company were accustomed to make monthly payments to their contractors, upon the estimates of the engineer, at the end of each month, and that they had so dealt with the plaintiff, it was held that this must be considered the rule of payment under the contract, established by mutual consent and binding upon the parties.1

4. A contract to build "riprap" wall for fifty cents a cubic yard, in the absence of proof of any general usage or uniform custom which could control the mode of measurement, was held to imply payment by the cubic yard after the wall was constructed.2

knowledge of the facts from the first. Mercer County v. Pittsburgh & Erie Railw., 27 Penn. St. 389.

* Jones & Dow v. Chamberlain, 30 Vt. R. 196.

1 Boody v. Rut. & Bur. Railw., 24 Vt. R. 660 (U. S. Cir. Ct.).

2 Wood v. Vermont Central Railw., 24 Vt. R. 608.

* SECTION XIX.

Remedy on Contracts for Railway Construction.

1. Recovery on general counts.

2. Amount and proof governed by contract.

§ 123. 1. It is a familiar principle of law, applicable to contracts for the performance of work and labor, that if the work is done so that nothing more remains but payment, there is no necessity of declaring specially upon the contract, but the recovery may be had under the general counts; and it will make no difference in this respect that it was not done within the time prescribed by the contract, if the work has been accepted by the other party, or the time for performance extended by such party, or the work has been done upon some permanent property of the other party, as in the case of building a railway.1

2. But ordinarily the contract will govern as to price and other incidents, so far as it can be traced. But where the party for whom the labor is performed wilfully hinders and obstructs the progress of the work, it has been held he was liable, as upon a quantum meruit. But in such case the party must prove the performance of the labor, by such proof as would be competent in an action on the special contract, and cannot treat the dealing as if it had been matter of account from the first.1

SECTION XX.

Mechanic's Lien.

1. Such lien cannot exist in regard to a rail- | 2. Opinion of Scott, J.

way.

§ 123 a. 1. It has been considered that although a public railway may come within the literal import of the terms used in a statute, to secure material-men and laborers, by what is denominated a mechanic's lien upon "buildings or other improve

1 Merrill v. Ithaca & Owego Railw., 16 Wendell, 586; s. c. 2 Am. Railw. C.

421.