where considerable variations were made from the contract, without the owner's orders, but were subsequently adopted by him, it was held that the production of the architect's certificate, although required by the original contract, was not necessary for payment. Where, in the absence of any stipulation in the contract as extension of time for extra work, the limit of time is held to be extended by reason of the ordering of variations, the implied stipulation thereafter is that the work shall be completed within a reasonable time. Adams vs. Cosby, 48 Ind. 153. Green vs. 1 Hilt. 254. McMaster vs. State of N. Y., 108 N. Y. 542. A CHAPTER XXIV. THE ABANDONMENT OF CONTRACTS. PART from the modifications which may be made, either by agreement or implication, in carrying out contracts, they may be wholly abandoned by either party, either directly or virtually, and it is important to know the rights of both parties in such cases. It is, as will be remembered, the general rule of law that if two parties make an agreement, by which one is, for a consideration, to do something for the other, and one of them without good cause refuses or neglects to carry out his part of the agreement, the other, if he is still willing and able to carry out his part, is entitled to recover from the other the contract price agreed upon, less the actual expense that he would have incurred in doing what he had promised; or, in other words, the profit that he would, with reasonable probability, have made out of the transaction. This rule was applied in the case of McMaster vs. State of New York, 108 N. Y. 542, quoted at some length on Page 292, but, in most building cases, the claims of the parties are so much complicated with alleged delinquenc on both sides that it is lost sight of. The abandonment of building contracts may be brought about in at least four ways. The owner may retreat from his bargain, as in the case just cited, or may not fulfil his part of the contract; or the builder may refuse or neglect to do what he has agreed; or the two parties may agree with each other, either expressly, or by implication, that the whole or a part of the work shall be given up; or the law, or some other irresistible power, may interpose to prevent the agreement from being carried out. In all these cases, as will be seen, the law will maintain the sacredness of the contract, and will try to enforce so much of it as still remains unaffected by the conduct or subsequent agreements of the parties. Thus, if a builder, who has partly completed his contract, so that he has conferred upon the other party substantial benefit, which the other party has accepted and taken the advantage of, then abandons the work, without the fault or consent of the other party, he will not be allowed to claim the reasonable value of his work and materials, irrespective of the contract price, as would be the case under some other conditions, but can, under the most favorable circumstances, recover only the contract price, less what it would cost to finish the work he had agreed to do, and deducting also whatever damage the owner may have suffered from his abandonment of the contract. If the owner is in default in carrying out his part of the agreement, the rights of the builder are greatly enlarged. It is then generally held that he is entitled either to treat the contract as still existing, and claim damages from the owner for the breach of it, as well as compensation at the contract rate for what he has done, or may treat the contract as having been abandoned, or "rescinded," and demand payment for his work and materials at their reasonable value; and even where there has been no intentional default, but so many changes have been made from the original plans and specifications as to make it impossible to trace the contract, and say to what part of the work it shall be applied, it has been held that recovery can be had on quantum meruit, that is, at the reasonable value of the work and materials furnished. It seems to be the rule that the claim cannot be made in both ways, so that the petitioner, or his counsel for him, must choose at the outset which course to take, and it will depend on circumstances which will be the more advantageous. In Ibers vs. Gregg vs. 38 Mo. App. 283. Robson vs. Lincoln rs. 50 N. H. 125. Keys vs. 5 Mass. 391. 7 Johns. 132. Leminsdate vs. Limpton, 10 Johns. 36. Clark rs. Mayor, 4 N. Y. 338. Jones vs. Judd, 4 N. Y. 411. Austin vs. 21 Mo. App. 30. Williams vs. Philipps rs. 5 Mo. App. 587. Ahern vs. Boyce, 19 Mo. App. 552. Kearney vs. 22 Mich. 294. Ehrlich vs. 15 Mo. App. 552, 88 Mo. 249. McCullough vs. 47 Mo. 401. Clark vs. 4 N. Y. 338. Wilson vs. Bauman, 80 Ill. 493. Selby vs. Hutchinson, 4 Gilm. 319. Webster vs. 5 Gilm. 300. some cases, even where the suit is brought on quantum meruit, the judge may instruct the jury that the reasonable value of the work done, and materials delivered, must be ascertained by applying to what has been done the contract rate for the whole work, instead of allowing for them the ordinary market prices. The practice in this respect, however, seems to vary in different States. The Supreme Court of Michigan said, "It "would be unjust to confine a party to the contract price "when, by the fault of the other party, who has practically "repudiated it, he is deprived of the opportunity of finishing "it." Here the suit was brought on quantum meruit. In the same way, it has been held in Missouri that "in a suit on quantum meruit and quantum valebant, a contractor is not restricted to a pro rata part of the contract price, if he has been prevented from completing the contract by the other party." The idea in this ruling is, perhaps, that in an action on the contract, where one party had been prevented by the other from completing what he had agreed to do, the one so prevented would be entitled to recover, not only payment for what he had done, but damages for the breach of the contract in addition; and it would hardly be fair, simply on account of the action having been brought in a different form, to restrict his recovery to the contract rate for what had been done, without any equivalent for the additional amount that would be awarded him as damages in a suit in the other form. In fact, this is the way in which the principle was expressed by the New York Court of Appeals, which held that "Where performance is prevented by one party to a contract, who terminates the agreement against the will of the other party, the latter may either sue for breach of contract, and recover as damages the profits he would have made if allowed to complete the work; or he may waive the contract, and bring his action on the common count for work and labor generally, and recover what the work done is actually worth; but in this case he cannot recover for profits on the unexecuted part of the work." The Michigan courts, however, carry out their principle logically, even where it does not work to the advantage of the contractor. In Allen vs. McKibben, 5 Mich. 449, it was held that, in a suit on quantum meruit, a contractor could not recover the contract price, if his work was not reasonably worth it. It should be noticed, in these cases, that there is an important distinction between mere failure of the owner to do all that he had agreed to, and such conduct as prevents the other party from carrying out his part of the contract. The Illinois Supreme Court says, "Where materials are furnished, and work done, under a special contract, the price therefor must be governed by its stipulations," and this rule has been strictly adhered to, with one apparent exception, in the case of Cook County vs. Harms, 108 Ill. 151, in which, however, the changes and extra work were so material that the Court held that the contract ceased to govern. The Supreme Court of Missouri still further explains the matter by saying, "A mere breach of contract does not entitle the other party to stop work, and recover for unperformed work. He might stop work, and recover for what he had already done, but not for what remained to be done. To recover for that, he must have been prevented from going on by the unauthorized interference of the other party "; and it is added in one case, "The measure of damages, on the contract, in such cases is the contract price, less what it would cost to complete the work." What is considered to be mere breach of contract, and what such conduct as amounts to preventing the other party from carrying out his part, may be indicated by a few examples. In Indiana case, the owner did not pay the instalments of money as the work went on, and the builder abandoned the contract, and sued for damages, alleging that he was prevented from doing what he had agreed by the failure of the owner to make payments on account. The Court said that, if the owner had really prevented performance of the contract, the builder would be entitled to recover, as damages, the profit Butts vs. Huntley, 1 Scam. 410. Herrington vs. Hubbard, 1 Scam. 569. Dubois vs. Canal Co. 4 Wend. 290. Campbell vs. 10 Penn. St. 483. 21 Ill. 654. Evans vs. Ch. & R. I. R. R. 26 Ill. 189. Holmes vs. Stummel, 24 Ill. 390. Fitzgerald vs. Hayward, 50 Mo. 516. Park vs. 1 Mo. App. 357. Kelly vs. 33 Mo. App. 440. Fairfield vs. Jeffreys, 68 Ind. 578. See, also, Griffin vs. Culver, 16 N. Y. 49. Cassidy vs. Lefevre, 45 N. Y. 562. |