Gilliam v. Brown

Contract to Construct Ditch—Guaranty of Capacity—Construction of Contract—Warranty—Time for Payment.—Where, by the terms of a contract for the construction of a ditch, the contractor was entitled to his money when a cut was made sufficient in capacity and grade to carry all the waters of a creek, and he was required to guarantee that all the waters of the creek should run through the cut for two years from the completion of the work, such guaranty is in the nature of a warranty, for which the owners of the ditch took the responsibility of the contractor, and he is not required to wait for the two years, and then show that the ditch had carried all the water at all times, to enable him to recover.

Id.—Action for Compensation—Performance—Acceptance of Ditch— Inapplicable Instruction—Verbal Alteration of Written Contract.—In an action by the contractor to recover the agreed compensation for the construction of the ditch, where the plaintiff contended that he had fully performed his contract, and also that the defendants had accepted the ditch as completed, the latter contention is not a claim that the contract had been varied, but that the defendants had accepted the work, and thereby agreed that it had been done as required, or that, by an executed agreement, which the parties were competent to make, further performance was waived, and the owners of the ditch accepted the work, and bound themselves to pay for it, although the contract had not been fully performed; and it is not error to refuse to instruct the jury, at the request of the defendants, upon the subject of verbal alterations of written contracts, even if the instructions asked were not substantially given by the court.

Id.—Levy of Assessment—Erroneous Instruction as to Acceptance._ Neither the levy of an assessment upon the-ditch nor an agreement to pay the workmen, while denying that the contract has been performed, and claiming that nothing is due to the plaintiff, can constitute an acceptance of the work; and an instruction to the jury that it is for them to determine whether the levy of an assessment of one thousand dollars was an alteration of the contract, to the extent that it constituted an acceptance of the work, is doubly erroneous in submitting to the jury a question of law, and in instructing on the question of an acceptance of the work.