Kalkmann v. Baylis

Baldwin J. delivered the opinion of the Court Field C. J. and Cope J. concurring.

We understand that the work done for which suit was brought was not done according to the written contract, but that some variations were made ; but that the work after completion was received by the defendants. The plaintiffs counted as well on the special contract as on a quantum meruit. But it seems that according to the contract, the sum of $600 was conditioned to be paid in freight on lumber or in cash at eight months from the date of the contract. We take this provision to give the defendants the election to pay in freight on lumber or in money. If they did not at the end of the eight months .pay in freight, it then became a money demand. We do not see how the mere fact that the plaintiffs made some variation from the plan of the work, that variation not being important, varied the contract as to the payment, either as to time or mode. Defendants by receiving the work became liableto pay for it what it was worth, taking the price agreed as the standard, but the terms of the payment were not designed to be changed. We do not see, therefore, how the jury could have found this sum of $600 as already due—that sum, according to the contract, not [294]being payable at the time the suit was brought. (1 Parsons on Cont., 35, note.)

If the acceptance of the work under the circumstances, the variations not being important, is to be considered a fulfillment of the contract according to its terms by the plaintiffs, then the same result follows; for according to the contract the plaintiffs were only entitled to this $600 eight months after the date of the contract.

Judgment reversed and cause remanded for new trial.