Evening journal., 1907-03-23
THE OLD Law
OF CONTRACTS
Contractors Must Fulfil Con-
tract TO Receive
Payment
BASIS FOR COMPENSATION

II a contractor in a building con-
tract does not substantially fulhn the
contract. and performance has not been
waived or excused, he can not main
tain an action on the contract for the
compensation payable upon the compile
tion OF the work. Sull, II the con-
tractor acted with a bona fide inten-
ton OF performing the contract. and
the builder retains the benefit of the
labor and materials expended IN the
partial performance and derives bene-
Mt therefrom, the law viii imply
promise on the builders part to pay
therefor, and the contractor may main
tain an action for a portion OF the
compensation in accordance with tho
benefits received. II the failure OF the
contractor to perform is wilful and
the builder can not avoid awaiting HIM
self OF the benefits OF the labor and
materials being attached TO the build
er's freehold, It has been held that the
contractor is not entitled to any COM
pensation for his partial performance.
When the contractor abandons his
contract and leaves materials on the
builders premises which the latter
makes use Of In completing the work,
the contractor Is entitled to recover
the value of such materials. The basis
Of the contractors recovery for the
partial performance Of the contract is
the benefit received by tho builder
therefrom, and therefore II the builder
has derived no beneh; therefrom the
contractor can not recover for such
partial performance. Where the con-
tract provides that upon the failure
OF the contractor TO complete the work
the builder may do so at his expense
and the builder completes the work
upon the contractors failure to do so.
the latter may recover for his partial
performance the contract price less the
expense incurred by the builder in
completing the work.
The mere inability OF the contractor
to perform the contract, not due to
any wrongful act or omission of the
builder, Is no excuse for his failure to
perform; and when the contractor un-
dertakes TO erect structure for a
fixed sum payable upon performance
the mere fact that the builder becomes
insolvent during the progress Of the
work does not Justify the contractor
In refusing to perform. 1.
The fact that full. performance OF
the contract is prevented by the wrong
ful acts Of the builder does not neces-
sarlly entitle the contractor to recover
the compensation provided for in case
the contract was fully performed; and
where the compensation Is paid in ad-
vance the contractor Is not entitled to
retain the full compensation without
regard to the value Of the work done
I'm the partial performances.
The builder may waive a full per-
formance Of the contract so as to en-
title the contractor 70 sue on the con-
tract and an acceptance of the worla
as IN compliance with the contract viii
constitute such a waiver When the
builder accepts the work as a full COM
pliance with the contract he can not.
as a general rule, either maintain an
action for damages for a failure OF the
contractor strictly TO perform the con-
tract nor recoup such damages in an
action by the contractor for compensa-
ton; but an acceptance is not
waiver Of latent defects In PERFORM
ance so as to preclude the builder from
maintaining an action for damages or
recouping damages therefor.
Where the work is inspected by the
builder during its progress, IL the con-
tractor is not complying with the con-
tract, It IS the duty OF the builder to
object to such work as does not COM
ply with tho contract and upon his
failure TO do so. he can not, after the
work is completed, claim that the work
was not done in accordance with the
contract.