Green v. Wilson

60 N.H. 146

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1880
• Status: Published

Opinion

Foster, J.

The instructions requested by the plaintiff should have been given. They were based upon the theory that the agreement as at first entered into between the parties was subsequently modified, so that the plaintiff was entitled to recover a reasonable compensation for the services performed. It appear» from the case that it was the expectation of the’ parties that the dam would be built in the season of 1872. Upon the failure of that expectation, a controversy arose between them, and in August, 1873, it was finally agreed that the work should be done, but without any understanding as to what, if anything, should be paid for the work, except that the plaintiff said, “ If we can’t agree, we will leave it out.” Here, then, was evidence for the consideration of the jury, of a substitution of a new agreement for the old one; an agreement that the work should be done, and the value of the plaintiff’s services subsequently determined; an agreement by which the plaintiff’s compensation would depend upon the principle of quantum meruit. The defendant’s final agreement, in August, 1873, that the work should be done, was evidence of hi» acceptance of the new proposition then made by the plaintiff in substitution for the agreement of 1872; and in this view the plaintiff was entitled to the instructions requested.

Verdict set aside.

Stanley, J., did not sit: the others concurred.