Hoke, J.,
after stating tbe case: There is no error in tbe proceedings below by which tbe issues submitted have been determined, and recurring to tbe case as presented by tbe report of tbe referee, and tbe judgment of bis Honor modifying same, this judgment of $6,489.64 is composed of items as follows:
Amount saved by defendant in completing work, as found by referee . $1,105.96
Amount of machinery belonging to plaintiff which was taken over and held by defendant. 1,563.95
Amount material, stone and cement belonging to plaintiff and now held by defendant. 906.99
Increased by bis Honor’s ruling on plaintiff’s exceptions . 2,912.74
Making a total of. $6,489.64
This last item was allowed to defendants by tbe referee as a part of tbe cost of completing tbe work under tbe contract, whereas tbe proof showed that tbe same arose by reason of defendant’s having used a
higher priced material than the contract stipulated and, to the extent of such increase, the same was not a legitimate charge in defendant’s favor in an adjustment controlled by the contract provisions. And if the contract furnishes the proper rule for our guidance in the matter, none of the items of charge are erroneous.
This was not seriously controverted by defendant’s counsel; we understood that it was admitted on the argument, and very properly so, but it contends that nothing should be allowed plaintiff and no accounting is due it because, while the jury have found that there was no abandonment by plaintiff of its rights under the contract, all the proof showed there was a failure of performance on its part, and if any recovery at all can be had, it must be on a
quantum, meruit
for work done and material furnished in the beginning of the work.
It is very generally held that “a party cannot recover damages for breach of contract stipulations without averring and proving a performance of his own antecedent obligations arising on the contract or some legal excuse for nonperformance thereof, or, if the stipulations are concurrent, his readiness and ability to perform them.” This statement of the principle, appearing in
Ducker v. Cochrane,
92 N. C., 597, has been recognized and approved in
Tussey v. Owen,
139 N. C., 457;
Corinthian Lodge v. Smith,
147 N. C., 244;
McCurry v. Purgason,
170 N. C., 468, and many other cases.
The doctrine, in its strictness, is usually so far modified as to permit a recovery on a
quantum, meruit,
in case of building or improvement contracts, when it is made to appear that the owner or other contracting party has received and continues to enjoy the benefits of a contractor’s work and under circumstances that in equity and good conscience call for compensation, a distinction referred to in
Corinthian Lodge v. Smith,
as follows: “The doctrine which we hold to be controlling on the facts of this appeal is modified to some extent by a line of cases which establishes the principle that when ‘one party has performed the contract in a substantial part and the other party has accepted and had the benefit of the part performance, the latter may, under certain circumstances, be precluded from relying on the performance of the residue as a condition precedent to his liability.’ 1 Beach Contracts, sec. 107; 9 Cyc., 645.
This principle more usually obtains in the case of building contracts, when the owner or proprietor of a house that has been built or substantially completed by another has entered into the possession and use of his building. In such case, owing to the great hardship and injustice that would frequently arise by a strict application of the general rule, the courts are disposed to lay hold of slight circumstance as justifying the modification suggested and apply.the principle as stated in Beach Modem Law of Contracts, as follows (section 108): “Where a building
is erected upon and becomes a part of tbe realty of tbe owner, and, although defective in some respects, is of real and substantial value to tbe owner, .the contractor can recover tbe value of bis work, less the damages to tbe other party, for a failure to comply with tbe terms of tbe agreement.” Neither tbe principle nor its modification, however, is allowed to affect tbe question when tbe contract itself provides for a specific method of adjustment in case of breach.
Tbe portion of this contract more directly relevant to tbe question thus presented is as follows: “In case of tbe refusal or failure of tbe contractors, after reasonable notice, to prosecute tbe work with proper diligence or to supply a sufficiency of skilled workmen, or of proper materials, or to execute tbe work in a satisfactory or expeditious manner, or in case of any other violation of this contract, then, if tbe said engineer shall certify that such refusal, failure or. violation is sufficient ground for such action, tbe town shall be at liberty, after three days notice, in writing, to the said contractors of their intention to do so, to provide such labor or materials as tbe engineer may advise, deducting tbe cost thereof from any money then due or thereafter to become due, under this contract; or they may terminate the employment of said contractor on all of tbe said work, and may enter upon tbe premises and assume tbe completion, of tbe aforesaid work, and take possession of all tbe materials thereon, and employ any such person or persons to finish tbe work and provide tbe proper materials therefor, as required under this contract. And in case of such debarment of said contractor and assumption of tbe work by tbe town, then tbe contractor shall not be entitled to receive any further payments under this contract until tbe said work shall be wholly finished, but tbe said contractor shall be indebted to the said town for all tbe expense incurred thereby, or for any damage sustained through such default, and tbe amount of such expense and damage may be retained by tbe said town out of tbe unpaid balance of tbe amount stipulated herein to be paid tbe said contractor. Tbe expense and damage thus incurred in finishing tbe said work shall be audited and certified by tbe said engineer, tbe same as if done by contractor, and if tbe amount shall exceed tbe balance due and unpaid said contractor, then tbe latter shall pay back this excess to tbe said town and be held therefor.”
A perusal of this stipulation will clearly disclose that it was tbe purpose of tbe parties “in case of any violation of tbe contract,” if tbe town took over tbe work and completed it, that an accounting should be bad between tbe parties, particularly that portion which provides: “That in case of such debarment, tbe contractor shall not receive any further payments till tbe work be wholly finished.” . . . And, further: “Tbe amount of such expense and damage (incident to contractor’s breach)
may be retained by said town out of the unpaid balance of the amount stipulated herein to be paid the contractor.” Not only is this apparent from the terms of the contract, but such an interpretation is clearly within its meaning and purpose.
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Hoke, J.,
after stating tbe case: There is no error in tbe proceedings below by which tbe issues submitted have been determined, and recurring to tbe case as presented by tbe report of tbe referee, and tbe judgment of bis Honor modifying same, this judgment of $6,489.64 is composed of items as follows:
Amount saved by defendant in completing work, as found by referee . $1,105.96
Amount of machinery belonging to plaintiff which was taken over and held by defendant. 1,563.95
Amount material, stone and cement belonging to plaintiff and now held by defendant. 906.99
Increased by bis Honor’s ruling on plaintiff’s exceptions . 2,912.74
Making a total of. $6,489.64
This last item was allowed to defendants by tbe referee as a part of tbe cost of completing tbe work under tbe contract, whereas tbe proof showed that tbe same arose by reason of defendant’s having used a
higher priced material than the contract stipulated and, to the extent of such increase, the same was not a legitimate charge in defendant’s favor in an adjustment controlled by the contract provisions. And if the contract furnishes the proper rule for our guidance in the matter, none of the items of charge are erroneous.
This was not seriously controverted by defendant’s counsel; we understood that it was admitted on the argument, and very properly so, but it contends that nothing should be allowed plaintiff and no accounting is due it because, while the jury have found that there was no abandonment by plaintiff of its rights under the contract, all the proof showed there was a failure of performance on its part, and if any recovery at all can be had, it must be on a
quantum, meruit
for work done and material furnished in the beginning of the work.
It is very generally held that “a party cannot recover damages for breach of contract stipulations without averring and proving a performance of his own antecedent obligations arising on the contract or some legal excuse for nonperformance thereof, or, if the stipulations are concurrent, his readiness and ability to perform them.” This statement of the principle, appearing in
Ducker v. Cochrane,
92 N. C., 597, has been recognized and approved in
Tussey v. Owen,
139 N. C., 457;
Corinthian Lodge v. Smith,
147 N. C., 244;
McCurry v. Purgason,
170 N. C., 468, and many other cases.
The doctrine, in its strictness, is usually so far modified as to permit a recovery on a
quantum, meruit,
in case of building or improvement contracts, when it is made to appear that the owner or other contracting party has received and continues to enjoy the benefits of a contractor’s work and under circumstances that in equity and good conscience call for compensation, a distinction referred to in
Corinthian Lodge v. Smith,
as follows: “The doctrine which we hold to be controlling on the facts of this appeal is modified to some extent by a line of cases which establishes the principle that when ‘one party has performed the contract in a substantial part and the other party has accepted and had the benefit of the part performance, the latter may, under certain circumstances, be precluded from relying on the performance of the residue as a condition precedent to his liability.’ 1 Beach Contracts, sec. 107; 9 Cyc., 645.
This principle more usually obtains in the case of building contracts, when the owner or proprietor of a house that has been built or substantially completed by another has entered into the possession and use of his building. In such case, owing to the great hardship and injustice that would frequently arise by a strict application of the general rule, the courts are disposed to lay hold of slight circumstance as justifying the modification suggested and apply.the principle as stated in Beach Modem Law of Contracts, as follows (section 108): “Where a building
is erected upon and becomes a part of tbe realty of tbe owner, and, although defective in some respects, is of real and substantial value to tbe owner, .the contractor can recover tbe value of bis work, less the damages to tbe other party, for a failure to comply with tbe terms of tbe agreement.” Neither tbe principle nor its modification, however, is allowed to affect tbe question when tbe contract itself provides for a specific method of adjustment in case of breach.
Tbe portion of this contract more directly relevant to tbe question thus presented is as follows: “In case of tbe refusal or failure of tbe contractors, after reasonable notice, to prosecute tbe work with proper diligence or to supply a sufficiency of skilled workmen, or of proper materials, or to execute tbe work in a satisfactory or expeditious manner, or in case of any other violation of this contract, then, if tbe said engineer shall certify that such refusal, failure or. violation is sufficient ground for such action, tbe town shall be at liberty, after three days notice, in writing, to the said contractors of their intention to do so, to provide such labor or materials as tbe engineer may advise, deducting tbe cost thereof from any money then due or thereafter to become due, under this contract; or they may terminate the employment of said contractor on all of tbe said work, and may enter upon tbe premises and assume tbe completion, of tbe aforesaid work, and take possession of all tbe materials thereon, and employ any such person or persons to finish tbe work and provide tbe proper materials therefor, as required under this contract. And in case of such debarment of said contractor and assumption of tbe work by tbe town, then tbe contractor shall not be entitled to receive any further payments under this contract until tbe said work shall be wholly finished, but tbe said contractor shall be indebted to the said town for all tbe expense incurred thereby, or for any damage sustained through such default, and tbe amount of such expense and damage may be retained by tbe said town out of tbe unpaid balance of tbe amount stipulated herein to be paid tbe said contractor. Tbe expense and damage thus incurred in finishing tbe said work shall be audited and certified by tbe said engineer, tbe same as if done by contractor, and if tbe amount shall exceed tbe balance due and unpaid said contractor, then tbe latter shall pay back this excess to tbe said town and be held therefor.”
A perusal of this stipulation will clearly disclose that it was tbe purpose of tbe parties “in case of any violation of tbe contract,” if tbe town took over tbe work and completed it, that an accounting should be bad between tbe parties, particularly that portion which provides: “That in case of such debarment, tbe contractor shall not receive any further payments till tbe work be wholly finished.” . . . And, further: “Tbe amount of such expense and damage (incident to contractor’s breach)
may be retained by said town out of the unpaid balance of the amount stipulated herein to be paid the contractor.” Not only is this apparent from the terms of the contract, but such an interpretation is clearly within its meaning and purpose. In these municipal contracts for public improvements, it is chiefly desired that the work shall be properly done and within the stipulated price, and that the municipality be protected from the uncertainties and delay of a settlement on the basis of' a
quantum, meruit.
This is the principal reason that the officers and agents of the municipality undertake to secure a specific method of' adjustment by the contract itself. To this end, in this and usually in contracts of like character, it is provided that if the work is not being done satisfactorily, the municipal agents may take it over, receive the-benefit of work already done, and apply any and all amounts due to a completion of the work according to the contract specifications. In addition, here and in other like cases, a solvent bond is required to make good any default on the part of the contractor, and, further, defendant is allowed to retain for any and all sums expended and all damages incident to delay. This being true, if the work is completed at an amount less than the contract specifies, it is right and just that there should bean accounting to the contractor for it. This is particularly true in the-present instance, where it appears that the plaintiff had entered on the-woi'k in good faith, prosecuted the same as far as it was able, and expended thereon from eight to ten thousand dollars, of which the defendant has received the benefit. They cannot recover the full amount of ’ this expenditure, because they are, as stated, barred from a recovery on a
quantum meruit
by the provisions of the contract, but they should' justly recover on it the contract price that was in excess of the cost of' the completed work.
There is well-considered authority elsewhere in direct support of the-position.
Robinson v. Chinese, etc., Benevolent Assn.,
54 N. Y. & Suppl., 858;
White v. Livingston,
69 Appell. Div., 361, approved 174 N. Y., 539 ;
Murphy v. Buckman,
66 N. Y., 297;
Wilkinson v. Becker,
185 Pa. St., 225; 30 A. & E. Enc. (2 Ed.), 1264. And decisions in our own Court are in full recognition of the general principle.
Piano Co. v. Kennedy,
152 N. C., 196;
Main v. Griffin,
141 N. C., 43.
There is no error in the proceedings below, and judgment for plaintiff is
Affirmed.