¶1When this case was before this court at a previous term, a new trial was ordered, because there was found to be a question of fact, material to the rights of the parties, which had not been passed upon. 126 Mass. 110. That question was, whether the imperfection in the construction of the tower of the church, on account of which the society refused to accept the church edifice as a full performance of the contract for its construction, was attributable to the fault of the contractor, or to a defect in the original plan, for which the contractor was not responsible. It has now been settled by a verdict in favor of the defendants, under instructions from which it is clear the jury must have found that the imperfect construction complained of was caused by improper workmanship, or improper materials furnished by the contractor.
¶2A question is now raised as to the true interpretation of the defendants’ contracts of acceptance, upon which this action is brought. These acceptances are indorsed upon two orders drawn by O’Flaherty in favor of the plaintiff in July and Sep*114tember 1875, each made payable “from percentage retained on work.” Both orders were accepted in March 1876 by the defendants, “ payable when the work is accepted by the church.” It is contended by the plaintiff, that payment of the orders is not made to depend upon the completion of the building contract, or upon the payment by the society of the balance due upon it; that by a fair construction of the contracts of acceptance, the payment upon them is to be made, when the society takes possession of the unfinished church edifice, in such manner as to give the defendants a right to recover, upon a quantum meruit for the work and materials of which the society had received the benefit. The argument is, that, as both parties had abandoned the completion of the tower when the orders were accepted, it could not have been intended by them to limit the time of payment to the acceptance of the work as a complete fulfilment of the building contract. There would be some force in this, if the failure on the tower was at that time understood and agreed between the parties to be due to the fault of the contractor, and not to a fault in the plan. But it was not so understood; on the contrary, the case finds that the matter was in dispute between them. If the fault was not in the contractor, then the possession taken by the society would, notwithstanding its protest, make it liable for the full contract price, and constitute an acceptance within the meaning of the contract with the defendants. The jury in this case might have found such an acceptance, under the instruction given, and have returned their verdict for the plaintiff, instead of a verdict for the defendants.
¶3The more reasonable construction of the contracts in question is that the defendants’ promises to pay were conditioned upon an express acceptance of the work under the contract, or upon an acceptance implied from the possession and occupation of a building, for the failure to complete which according to contract the defendants were not at fault. The interpretation contended for by the plaintiff is inconsistent with the terms of the orders themselves, which are both made payable out of the percentage retained by the society, which we understand to be that portion of the contract price usually retained for the last payment, as a guaranty for the full performance of the contract.
¶4Exceptions overruled.