Wilhelm v. Caul

2 Watts & Serg. 26

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1841
• Status: Published

Opinion

The opinion of the Court was delivered by

Sergeant, J.

This case resembles that of Preston v. Finney, (post. 53) decided at the present term, with this difference: that here, the defendant dispensed with the performance of some minor portions of the contract, after it had been for the most part performed by the plaintiff. These portions were two doors and one window. If a contract require the performance of the entire work by one party, yet if the other party dispense with portions of it, the plaintiff may recover, under the contract, the price he is entitled to for the work he has done. It is urged that the court erred in charging in the alternative, and thereby permitting a recovery for part performance, if the money was payable as the work went on according to the contract. It is, however, stated by the court that it was shown the defendant had dispensed with the articles omitted, namely, the two doors and one window. If so,, that is sufficient. The evidence in the cause has not been furnished to us by the defendant, and the facts must therefore be taken to be as stated in the charge of the court.

Judgment affirmed.