Hammond v. Miller

<p>It- Where one partly performs his contract and then refuses to complete it, he has no right of action' upon the contract even for the work already done ; his rights under it are gone when he abandons it, and the other party has a right to treat it at once as at an end.</p> <p>"Quaere, whether the acceptance of the work partially performed, even when the acceptance cannot be avoided, does not raise an implied assumpsit to pay the reasonable value of the work so accepted.</p> <p>"3. But in the case of an uncompleted contract to build a house, when the work already done has been paid for, the owner has the right immediately upon the default to take possession of the unfinished fouilding and finish it himself, or employ others to do so, and under no sueh circumstances can the original contractor have a claim upon the owner of the land for any saving effected on the original contract price in the completion of the building.</p> <p>•¡3. Under a building contract, M., the owner, had full power, in case of the default of the contractors, B. & C., to finish the houses at their cost, and to deduct the same from any money owing them at the time of default. B. & C. defaulted, having been paid for all work done to •date. The completion of the houses was then undertaken by M., and •effected at 'a less cost than the original contract price. It was argued ’•that this completion was, under the terms of the contract, a completion by M. as agent of B. & C., and on their account, and henee B. & C. were entitled to the saving made on the contract price.</p> <p>■Beld, That it was optional with M. to complete the contract on B. & -C.’s account, or to treat it as wholly rescinded, and finish the houses for his own benefit; that having elected the latter, the saving was his •own, and not B. & O.’s. But, quaere, if money sufficient to finish the work and belonging to B. & O. had been in M.’s-hands, would the work finished by M. be work done with the money of B. & C., and, in •contemplation of law, their work, so as to entitle them to any saving on the contract price made by M. ?</p> <p>Semble, If M. accept an order of B. & C. in favor of H., payable out of whatever will be due B. & C. on the completion of their contract, and afterwards advances to B. & O. money that was due only on such completion, he will be liable to H. for as much as was thus paid away to •the latter’s prejudice.</p>