majority">Fowler, J.,

delivered the opinion of the Court.

The defendant, who is an architect and builder, agreed with the plaintiffs, who are agents of the County Court of Raleigh County, West Virginia, to supply the materials and labor and build a court-house for the sum of $25,751. This agreement was in writing and under seal, and according to its terms the building was to be completed within sixteen months from its date, that is to say, on or before the 2nd day of January, 1892. The naiT. alleged that the defendant failed to erect and complete said building according to the terms of the agreement, and abandoned the work; that consequently the plaintiffs were compelled to finish it, and they claim $7,000.

On the 4th May, 1892, an order was passed by said County Court reciting that it having been made to appear to the Court that the defendant was not prosecuting the work as he agreed, it was ordered that notice be given to him to proceed with diligence to complete the building, and that if he failed to proceed with the same in ten days after such notice, then the Court, at its election, would proceed to have the same completed at his expense. A copy of this order was sent to the defendant, and he received it on the 10th of May. On the 7th May the defendant’s superintendent in charge of the work closed up his accounts and left Raleigh for Baltimore, leaving the building in an unfinished condition — only two-thirds or three-fourths completed. On the 22nd May the superintendent returned to Raleigh, and was employed by the plaintiffs to finish the building. The defendant testifies that he directed him to return and resume charge of the work as his agent. The defendant failed, however, according to all the testimony, his own included, to furnish either labor or materials after the 7th of May.

The plaintiffs having finished the building after notice to' the defendant to resume work, are entitled to recover, *338unless the circumstances relied on by the defendant constitute a defence or valid excuse for his abandonment of the work. His defence is that not having been paid for certain extra work he had a right to stop work on the building until paid; and, secondly, that in June, 1892, after the alleged abandonment, the plaintiffs agreed that he should furnish the necessary materials to complete the work.

The contract itself provides that if in excavating for the foundations it should become necessary to excavate deeper than shown by the drawings to get a solid foundation for the walls or any part thereof, that measurements should be made at the time to ascertain the exact amount of additional excavation, masonry, labor and materials, which were to be valued and paid for as an extra' at such prices as should be agreed upon before the woi-k should be 'done, otherwise no payment was to be made for such extra work. On the 24th February, 1891, the plaintiffs informed the defendant’s foreman that they had decided that the foundations should be made twelve inches deeper than provided in the specifications. It appears that the extra work was done, but without any agreement as to price, as provided in the contract. And in April, 1892, more than a year after this extra work was finished, the defendant for the first time demanded a settlement for it. In the meantime he had been paid more than the whole amount he was entitled to up to the time of completion of the building, which the testimony shows was only about two-thirds done when abandoned by the defendant. Although the plaintiffs deny that they refused to pay for extra work, it is not surprising that under the circumstances they may have been unwilling to pay anything more to the defendant on account of his work. The defendant says, that upon the refusal of the plaintiffs to pay his claim for extra work, he protested against such injustice and declared to them that if they refused to allow for extra work after ordering it, their contract was worthless. And he seems to have acted upon this view, for very soon thereafter the work appears practically aban*339doned by him. Early in June the defendant went to Raleigh, and there entered into a written agreement to refer to arbitration his claim for extra work ; and he testifies, although contradicted flatly by the plaintiffs, that at the same time he had an understanding with them that he would furnish all the materials from Baltimore to finish the work, and that he was ready to go on and complete the same. The arbitrator subsequently ascertained the amount due the defendant tQ' be $716.25, and this was allowed him as a credit against the plaintiff’s claim.

It is admitted that the instruction given at the instance of the plaintiff is in itself unobjectionable. But it is contended that the prayers offered by the defendant should also have been granted in connection with that of the plaintiff. But we do not agree to this view. The defendant’s first prayer contains this proposition, that the plaintiffs are not entitled to recover unless the jury shall find that the defendant wilfully abandoned his contract and discontinued work thereunder, with intent finally to quit the same. The question here, however, is not whether the abandonment was wilful, but whether it was under such circumstances as afford the defendant a legal excuse for the violation of his contract. Gill & McMahon v. Vogler, 52 Md. 665. The abandonment may have been free from wilfulness, and yet, if the circumstances on which the defendant relies for a justification do not constitute a legal excuse, the plaintiff should recover. The remaining proposition contained in this prayer, as we understand it, is that if the plaintiffs and defendant agreed to refer to arbitration the claim for extra work, the plaintiff had no legal right, notwithstanding all the other facts in the case, to take possession of and complete the work at defendant’s expense. The matter, however, referred to arbitration was entirely distinct from the main contract, according to the terms of which the very claim to be (arbitrated had no foundation whatever. The defendant certainly should not be excused from performing his part of the *340■original and subsisting contract because of a difference between him and the plaintiffs as to a matter extrinsic and foreign to it.

The second prayer of the defendant is based upon his own testimony to the effect that in June, 1892, there was an understanding between him and the plaintiffs that whatever the amount found due him by arbitration should, be ■added to the balance due on the contract price, and the whole amount should be disbursed by the plaintiffs in payment of labor, and that he would furnish all the materials from Baltimore for the completion of the building, and that he was ready to go on and complete the work. Upon this ■evidence the defendant asked the Court to instruct the jury that if they found such understanding was had between the parties, that the defendant was justified in abandoning the work, and that the plaintiff had no legal right to take charge ■of the work before the award' of the arbitrator was filed. But we think it clear such an instruction is not warranted by the facts of this case. ’ For even if it be conceded, as it is in considering this prayer, that such an understanding was had, yet it must be remembered that all the testimony shows that the defendant never took any steps to comply with his part of the understanding. He never furnished or offered any materials for the work from the time he gave up the work to the time of trial of this case. All he did after the 7th of May was to send an agent to Raleigh without furnishing him with any means whatever of prosecuting the work. The existence of the alleged contract made in June, can afford the defendant no excuse for failure to perform the original contract, if he was not in fact able and never made any bona fide effort to perform his part of the June contract. Undoubtedly, if in June the parties made the contract in question, and it was agreed it was to take the place of or be a modification of the first contract, a different case would have been presented. But there is no such case before us. We think the facts were fairly put to *341the jury in the instruction given by the Court, and finding no error the judgment will be affirmed.

(Decided June 18th, 1895.)

Judgment affirmed with costs to plaintiffs.

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