Tinker vs. 1 E. D. Smith, 687. Tew vs. Newbold, 1 C. & E. 260. Alger vs. Vanderpoel, 34 J. & S. 161. Van Buskirk vs. Stow, 42 Barb. 9. Bimbauer vs. case of ordinary day-work; and that the owner's promise, if the changes were made, "thereupon " to make payment, was an additional express agreement on his part to pay on completion. The Court, however, held that the changes from the contract, made by mutual consent, had no effect upon the sealed covenant by which the terms and times of payment were fixed; and, as to the verbal promise of the owner, the Court said that a provision of this description in a sealed contract could not be altered by parol, unless upon sufficient consideration. In the same way, in Illinois, it has been held that "where the terms of a contract have been departed from, by consent of the parties, they will still regulate the rate of compensation, so far as they can be traced." Whether variations from the contract as to the work done abrogate the provisions relating to the time of completion, or the procuring of the architect's certificate before payment, seems to depend on the circumstances, and the character of the deviations. It has been held that orders for extra work do not extend the time of completion, if the architect, under the contract, has power to extend the time on account of extra work, and does not do so; and, in another case, where orders for variations were permitted under the contract, the value to be added to or deducted from the contract price, it was held that work and materials so provided, although not called for by the contract, would be deemed as done thereunder, and no recovery could be had therefor without full performance of the contract. On the other hand, in a case, where, as it seems, the contract did not provide for the point in question, and where extra work was ordered by the owner, it was held that the time of completion must be considered as having been extended by the parties, to enable the work agreed upon to be completed. Here it appeared that the work included in the original contract would have been completed within the time stipulated in the contract; and, in a somewhat similar case, where considerable variations were made from the contract, without the owner's orders, but were subsequently adopted by him, it was held that the production of the architect's certificate, although required by the original contract, was not necessary for payment. Where, in the absence of any stipulation in the contract as extension of time for extra work, the limit of time is held to be extended by reason of the ordering of variations, the implied stipulation thereafter is that the work shall be completed within a reasonable time. Adams vs. Cosby, 48 Ind. 153. Green vs. Haines, 1 Hilt. 254. McMaster vs. State of N. Y., 108 N. Y. 542. CHAPTER XXIV. THE ABANDONMENT OF CONTRACTS. PART from the modifications which may be made, either by agreement or implication, in carrying out contracts, they may be wholly abandoned by either party, either directly or virtually, and it is important to know the rights of both parties in such cases. It is, as will be remembered, the general rule of law that if two parties make an agreement, by which one is, for a consideration, to do something for the other, and one of them without good cause refuses or neglects to carry out his part of the agreement, the other, if he is still willing and able to carry out his part, is entitled to recover from the other the contract price agreed upon, less the actual expense that he would have incurred in doing what he had promised; or, in other words, the profit that he would, with reasonable probability, have made out of the transaction. This rule was applied in the case of McMaster vs. State of New York, 108 N. Y. 542, quoted at some length on Page 292, but, in most building cases, the claims of the parties are so much complicated with alleged delinquencies on both sides that it is lost sight of. The abandonment of building contracts may be brought about in at least four ways. The owner may retreat from his bargain, as in the case just cited, or may not fulfil his part of the contract; or the builder may refuse or neglect to do what he has agreed; or the two parties may agree with each other, either expressly, or by implication, that the whole or a part of the work shall be given up; or the law, or some other irresistible power, may interpose to prevent the agreement from being carried out. In all these cases, as will be seen, the law will maintain the sacredness of the contract, and will try to enforce so much of it as still remains unaffected by the conduct or subsequent agreements of the parties. Thus, if a builder, who has partly completed his contract, so that he has conferred upon the other party substantial benefit, which the other party has accepted and taken the advantage of, then abandons the work, without the fault or consent of the other party, he will not be allowed to claim the reasonable value of his work and materials, irrespective of the contract price, as would be the case under some other conditions, but can, under the most favorable circumstances, recover only the contract price, less what it would cost to finish the work he had agreed to do, and deducting also whatever damage the owner may have suffered from his abandonment of the contract. If the owner is in default in carrying out his part of the agreement, the rights of the builder are greatly enlarged. It is then generally held that he is entitled either to treat the contract as still existing, and claim damages from the owner for the breach of it, as well as compensation at the contract rate for what he has done, or may treat the contract as having been abandoned, or "rescinded," and demand payment for his work and materials at their reasonable value; and even where there has been no intentional default, but so many changes have been made from the original plans and specifications as to make it impossible to trace the contract, and say to what part of the work it shall be applied, it has been held that recovery can be had on quantum meruit, that is, at the reasonable value of the work and materials furnished. It seems to be the rule that the claim cannot be made in both ways, so that the petitioner, or his counsel for him, must choose at the outset which course to take, and it will depend on circumstances which will be the more advantageous. In Ibers vs. O'Donnell, 25 Mo. App. 120. 38 Mo. App. 283. Robson vs. Godfrey, Holt, 236. Lincoln rs. Schwartz, 70 Ill. 134. Wheeden vs. Fiske. 50 N. H. 125. Keys vs. 5 Mass. 391. Tuttle vs. 7 Johns. 132. 4 N. Y. 338. Jones vs. Judd, 4 N. Y. 411. Austin vs. 21 Mo. App. 30. Williams vs. Philipps vs. 5 Mo. App. 587. Ahern vs. 19 Mo. App. 552. Kearney vs. Doyle. 22 Mich. 294. Ehrlich vs. Etna, 15 Mo. App. 552, 88 Mo. 249. McCullough vs. 47 Mo. 401. Clark vs. 4 N. Y. 338. Wilson vs. Bauman, 80 Ill. 493. Selby vs. Hutchinson, 4 Gilm. 319. Webster vs. 5 Gilm. 300. 66 66 some cases, even where the suit is brought on quantum meruit, |
