quires the owner to pay instalments of the contract-price as the building progresses, failure to make such payments usually justifies the contractor in his refusal to continue the work." So, a contractor for the construction of a launch is relieved from further performance of the contract, where the employer refused to pay an instalment in accordance with the contract, unless the contractor would give him security which he was under no obligation to give.1 But, where the contractor, prior to the completion of the work, signed a memorandum agreement not to ask for more money until the plastering of the building was completed, in consideration of payment of two thousand dollars, which he received, the contractor was not justified in refusing to complete the work because of the failure of the owner to pay for extra work, the plastering never having been completed.13 And a provision in a contract authorizing the contractor to discontinue work upon the completion of a certain portion of the building if the owner fails to pay the instalment when due, does not authorize the contractor to discontinue work because of nonpayment of the instalment, where the work has not been com pleted in accordance with the specifications, and he has not furnished a bond for faithful performance of his work as called for by the contract.1 15 A building or working contract which does not call for the personal skill of the contractor may be sublet, unless the contract provides against subletting.1 And the owner cannot object to the subletting of the contract in violation of the terms of the original contract, where he has knowledge of the tect paid by the owner, and giving him authority to condemn the work or any part thereof and require its replacement by the contractor, the owner cannot charge the contractor with the services of an inspector employed to see that the work conforms to the plans and specifications. Simpson Bros. Corp. v. White, 187 Fed. 418. "Lawrence Bros. v. Heylman, 184 N. Y. 531, 76 N. E. 1098; Peet v. East Grand Forks, 101 Minn. 518, 112 N. W. 1003. 12 Michigan Yacht & Power Co. v. Busch, 143 Fed. 929. 13 Condon v. Church of St. Augustine, 112 App. Div. (N. Y.) 168, 98 N. Y. S. 253. 14 Schillinger Bros. Co. v. BoschRyan &c. Co. (Iowa), 116 N. W. 132. 15 Danforth v. Tennessee &c. R. Co., 93 Ala. 614, 11 So. 60; Curran v. Clifford, 6 Colo. App. 289, 40 Pac. 477; Reed v. Conway, 26 Mo. 13; Bienhauer v. Gleason, 15 N. Y. St. 227; Wetter v. Kleinert, 139 App. subletting and made no objection to it until the subcontractor completed his work.18 The rule relating to default as to a part of the building or construction contract renders him who fails to perform his part, when the other party has performed, liable to the latter in damages.1 So, under a contract for the furnishing of stone for a mausoleum, and providing for delivery to the employer at the place of erection of the mausoleum, the owner is entitled to deduct the cost of repairing two vases required by. the contract, which were broken in transit prior to delivery.18 And where a subcontractor has performed his work, which has been accepted and paid for, and subsequent repairs were required because of the contractor's failure to perform his part of the contract, and not by fault of the subcontractor, the subcontractor cannot be held for the cost of such repairs. But where the performance on the part of the contractor is dependent upon something which has to be done by the owner, who did not give the contractor explicit notice to proceed with the work, the owner may be liable to the contractor for damages,20 and the contractor may recover from the owner for loss sustained from the enforced idleness of his workmen, due to the fault of the owner.21 But it has been held that if a contractor has intentionally violated the contract, he cannot recover for a balance due on the contract-price, nor for extras, although the owner has not sustained damages from Div. (N. Y.) 220, 123 N. Y. S. 755; 17 Marshall v. Mackintosh, 78 L. T. (N. S.) 750; Bryant v. Broadwell, 140 Cal. 490, 74 Pac. 33; Barker v. Nichols, 3 Colo. App. 25, 31 Pac. 1024; United States v. Maloney, 4 App. Cas. (D. C.) 505, 22 Wash. L. (D. C.) 785; Junker v. Fobes, 45 Fed. 840; Hensen v. Beebe, 111 Iowa 534, 82 N. W. 942; Sarrazin v. Adams, 110 La. 124, 34 So. 301; Police Jury v. Johnson, 111 La. 279, 35 So. 550; Hyde v. Grisby, 11 La. 239; Oxnard v. Locke, 13 La. 449; Davis v. Ford. 81 Md. 333, 32 Atl. 280; National Contracting Co. v. Commonwealth, 19 183 Mass. 89, 66 N. E. 639; Harrison v. Murray Iron Works Co., 96 Mo. App. 348, 70 S. W. 261; Ogden v. Pioneer Iron Works, 91 App. Div. (N. Y.) 394, 86 N. Y. S. 955; Aldrich v. Wilmarth, 3 S. Dak. 523, 54 N. W. 811; Clifford v. Richardson, 18 Vt. 620; Atlantic & D. R. Co. v. Delaware Const. Co., 98 Va. 503, 37 S. E. 13; Long v. Pierce County, 22 Wash. 330, 61 Pac. 142; Keller v. Oberreich, 67 Wis. 282, 30 N. W.. 524. the breach, since in such case the equitable doctrine of substantial performance does not apply.22 If, however, the owner refuses to permit the contractor to perform his part of the contract, the latter can recover damages resulting therefrom, unless he has waived the breach.23 Where a building contract con tains a stipulation that the owner shall not be liable for damages which the contractor may sustain from other contractors, it releases the owner from liability for damages to the contractor, resulting from the negligence of other and independent contractors of the owner. The owner may waive his right to damages for breach of contract by accepting and paying for the work with knowledge of the breach;25 or where, during the progress of the work, he examined it from time to time, and with knowledge of the inferior work done and materials used, and made payments to the contractor, or executed his note for the balance due.26 But if the contractor continues his work after being delayed by the owner, it has been held that it does not amount to a waiver of his agreement for damages because of the delay;27 nor does the receipt by the contractor of the contract-price necessarily amount to a waiver of the damages. 28 § 3691. Contracts to sink wells.-If a contract to sink a well does not specify the quantity29 or the quality of the water plete the work in accordance with the contract was not caused by the fault of the owner, the owner may recoup damages resulting from the default of the contractor in an action for the contract price, and if the contractor was prevented from performing the contract by fault of the owner, he can recover such sum as was due him when the action was instituted. 22 Nelson v. Pickwick Associated Co., 30 Ill. App. 333; Mortimer v. Dirks, 57 Wash. 402, 107 Pac. 184, 137 Am. St. 1047. 23 Beattie v. New York &c. R. Co., 84 Conn. 555, 80 Atl. 709. Haydnville Min. &c. Co. v. Art Institute, 39 Fed. 484; Cook County v. Sexton, 16 Ill. App. 93; Nelson v. Pickwick Associated Co., 30 Ill. App. 333; McNulty v. Stearns, 85 Iowa 437, 52 N. W. 357; State v. Farish, 23 Miss. 483; Coulter v. Board of Education, 63 N. Y. 365; Bannon v. Jackson, 121 Tenn. 381, 117 S. W. 504, 130 Am. St. 778; O'Connor v. Smith, 84 Tex. 232, 19 S. W. 168. 25 Sirch Electrical & Testing Lab. v. Garbutt, 13 Cal. App. 435, 110 Pac. 140. 20 Houlette v. Arntz, 148 Iowa 407, 126 N.. W. 796. "Western Union R. Co. v. Smith, 75 Ill. 496; Allamon v. Albany, 43 Barb. (N. Y.) 33; Figh & Gindrat's Case, 8 Ct. Cl. (U. S.) 319. 28 Weeks v. Trinity Church, 56 App. Div. (N. Y.) 195, 67 N. Y. S. 670. 20 Omaha Consolidated Vinegar Co. v. Burns, 49 Nebr. 229, 68 N. W. 492; Chapin v. Candee. 14 Misc. (N. Y.) 453, 35 N. Y. S. 1018; Butler v. Davis, 119 Wis. 166, 96 N. W. 561. to be obtained, no warranty as to quantity or quality will be implied;30 nor is there an implied agreement that water shall be obtained, if the contract to sink the well contains no stipulation that water shall be reached.31 Under a contract to bore a well at a place selected by the owner, the refusal of the owner to allow the contractor to drill another well after abandoning the first one on account of the drill becoming stuck, is not a breach of the contract by the owner.32 A guaranty of a continuous supply of water will not be implied from a contract which calls for a well which will supply a certain quantity of water,33 but the guaranty as to quantity will be construed to continue for a reasonable time after completion of the well.34 § 3692. Entire and severable contracts.-The parties to an entire contract are bound to execute all its stipulations, and as a general rule no part of the consideration can be recovered in an action on the contract until the whole has been performed,35 that is to say, if there is no act of default or interference on the part of the owner of the building, an action for indebitatus assumpsit cannot be sustained. Yet, sometimes the circumstances of the case may be such that a new contract will be implied from the conduct of the parties, as where the terms of the special contract have been altered by mutual consent, or by acceptance of the work which is really beneficial,37 or extra services have been. performed, and suit may be brought on a quantum meruit for 30 Electric Lighting Co. v. Elder, 115 Ala. 138, 21 So. 983; Rankin v. Wever, 78 Ill. App. 86; Littrell v. Wilcox, 11 Mont. 77, 27 Pac. 394; Chapin v. Candee, 14 Misc. (N. Y.) 453, 35 N. Y. S. 1018; Book v. New Castle Wire Nail Co., 151 Pa. St. 499, 25 Atl. 120; Blum v. Brown, 11 Tex. Civ. App. 463, 33 S. W. 145; Gregory v. United States, 33 Ct. Cl. (U. S.) 434; Butler v. Davis, 119 Wis. 166, 96 N. W. 561. 32 Law v. Patton, 117 Mo. App. 541, 93 S. W. 354. 33 Wunsch v. Boldt, 4 Tex. Civ. App. 50, 15 S. W. 193. 34 Planters' Well Co. v. Bodenheimer, 48 La. Ann. 1345, 20 So. 707. See also, Vincent v. Morrison, 58 Mo. App. 497. 35 Roberts v. Havelock, 3 B. & Ad. 404; Huyett & Smith Mfg. Co. v. Chicago Edison Co., 167 Ill. 233, 47 N. E. 384, 59 Am. St. 272. 30 Cutter v. Powell, 2 Smith's Lead. Cas. (11th ed.) 1, 6 T. R. 320; Dermott v. Jones, 2 Wall. (U. S.) 1. 17 L. ed. 762. "Crookshank v. Mallory, 2 G. Gr (Iowa) 257. 42 41 the work actually performed.38 Building contracts frequently provide that the builder shall not receive any compensation until the completion of his undertaking. And, in such cases, it has been held that he is not entitled to recover the value of the materials used in the construction as far as finished.40 The owner is not liable for goods sold and delivered, unless the contract is apportionable, or there is an understanding that the materials and labor are to be paid for as the work progresses. So, where a ship was to be put in thorough repair, and the builder demanded part payment for partial performance, the court held that he was not entitled until he had completed the job." And where a party agrees to do certain work, and to furnish materials for a stipulated price, to be paid upon completion, he cannot abandon the contract and recover for what he has done.43 Where a builder agreed to repair a house and complete the work by a certain day, to be paid therefor a certain sum "when the job is completed," but he abandoned the work before completion, it was held that, as the contract was entire, full performance being a condition precedent to the payment, the builder could not recover pro rata compensation for the work done."4 But if the work has been completed by the owner, the contractor can recover the contract-price less the owner's damages. So, where the contract is to do specific work for a specific sum, the courts hold that the contract must generally be fully executed before payment can be demanded. So, one who agrees to dig a well a certain depth at a certain price per foot, but abandons the work without fault of the employer before reaching such depth, and without obtaining a flow of water satisfactory to the employer, cannot recover for the number of feet dug, since the contract is an entire and 38 46 'Derby v. Johnson, 21 Vt. 17; Bank of Columbia v. Patterson, 7 Cranch (U. S.) 299, 3 L. ed. 351. Ellis v. Hamlen, 3 Taunt. 52; Reeves v. Lines, 8 Car. & P, 126; Stewart v. Craig, 3 G. Gr. (Iowa) 505. 40 Clark v. Bulmer, 11 M. & W. 243. "Cotterell v. Apsey, 6 Taunt. 322. 42 Roberts v. Havelock, 3 B. & Ad. 43 45 Morton v. Read, 2 S. & M. 585; Chambers v. King, 8 Mo. 517. Kettle v. Harvey, 21 Vt. 301. 45 Austin v. Austin, 47 Vt. 311. 46 Sinclair v. Bowles, 9 B. & C. 92. See, however, Lord Tenterden's opinion in case just cited; also Wade v. Haycock, 25 Pa. 382, 28 Am. Dec. 527; Sickle v. Pattison, 14 Wend. (N. Y.) 257. |