majority">Foster, J.

From the finding of facts in this case it appears that the parties to it entered into a contract with each other on the 28th of March, 1873. Maloney, the plaintiff, agreed to furnish stone and other materials for the building of a cellar wall and the underpinning of a house, and to build and construct the same for Eust the defendant; in consideration of which, and of the payment of $100 by Maloney to Eust, Eust was to convey to Maloney a 'certain building lot, specified and described in the contract. Maloney failed, to perform his agreement. Eust brought- a suit against him for the non-performance, and recovered the sum of $135 damages. It is now found, that “ the benefit actually and finálly received by the defendant, from the work and material furnished by the plaintiff under the contract, was $136.” The defendant in this case having been made good for the damages sustained by him for the non-performance by the plaintiff of the contract into which they had entered, ought to pay the plaintiff for the materials furnished and labor performed by him which the defendant has voluntarily appropriated and made available to himself. If this question mould have been adjudicated in the former action between *243these parties, it is to be regretted that it was not done, for the law discourages multiplicity of suits. As it was not then considered, and as the finding is clear and positive as to the benefit derived by the defendant, we think the plaintiff is entitled to judgment.

"We advise the Court of Common Pleas to render judgment ■ for the plaintiff for the amount specified.

In this opinion Park, C. J., and Carpenter and Pardee, Js., concurred.

Phelps, J.

This is an action to recover for the value of labor and materials furnished under a special and entire contract, which was voluntarily abandoned by the plaintiff before the completion of the work, without the consent and against the protest of the defendant, and other persons were necessarily employed by the defendant to complete it. The declaration counts on the contract and alleges a breach, and also contains the common counts for labor and materials. I am unable to see that it has anything to distinguish it from the ordinary case of a refusal to complete such a contract, in which case the party refusing can recover nothing for what he has done, either upon a special or the common counts. Londregon v. Crowley, 12 Conn. R., 558. Certainly not without showing that the other party to the contract has received some benefit from the labor done or materials furnished.

The full performance by the plaintiff and also the payment by him to the defendant of one hundred dollars in money, were by the terms of the contract expressly made the consideration for the defendant’s promise of compensation. It was clearly a condition precedent, and even though the condition appeared to be contrary to the equity of the case, the clear expression of the intention of the parties would prevail. Leonard v. Dyer, 26 Conn. R., 172.

The plaintiff did not stipulate against the happening of the accident which occurred, and therefore can not set that up as a defence. The defendant was in no way the author of or responsible for it. School District v. Dauchy, 25 Conn. R., 530.

*244In this case the compensation was to be in land instead of money, and without its having been made to appear that the defendant was guilty of some wrong or breach, it is difficult to understand upon what principle he can be compelled to pay pecuniary damages, and be thereby obliged to do what he did not promise, and what was never contemplated or intended by either party.

I also think the question presented in this case was directly involved and fully adjudicated in the former action by the defendant against the plaintiff. That action was brought for a breach of the same contract, and the gist of it consisted in particular allegations of the worthlessness of the same labor and materials for which this suit is brought, and the consequent injury to the present defendant by the necessary procurement of new materials and the reconstruction of the work. This was no otherwise answered than by a general denial, and the averments in the declaration were found true, and made the basis of a judgment for damages. Under the issue thus formed, the value of the labor and materials must have been considered in estimating the amount of the damages for which the judgment should be rendered, and the claim now made was then disposed of, and is res adjudicata. The fact that in the present action the court found the labor and materials worth a certain sum, is an insufficient answer, if their value, or want of value, was entertained and accounted for in the former suit.

I think the Court of Common Pleas should be advised to render judgment for the defendant.

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