The principal action was instituted by plaintiff, a contractor, who claimed that, having entered into a contract with the owners to build an office building at a contract price of $40,328.80, he did the work on time, to a stated period, when defendants wrongfully refused to pay him an installment due, and he was forced to abandon the work, and he sued for certain labor done and material furnished, and for profits to accrue on performance, etc.
Defendant denied that any amount was due for work, (216) etc., done under the contract; alleged, further, that plaintiff had voluntarily abandoned the contract in his own wrong, having refused to remove certain woodwork, when directed by the architect, placed in the building before the plastering had dried, contrary to the express provisions and stipulations of the contract; that he thereupon voluntarily quit the work, as stated, and defendants, the owners, were compelled to finish the building themselves, and set up, by way of counterclaim, damages for delay and increased expense. The contract, among other things, contained stipulation for damages for such delay at the rate of $25 per day.
At September Term, 1915, the cause was referred to G. V. Cowper, Esq., the order of reference, among other things, providing that by consent any amount found due from the owners under the contract should be applied in discharge of all debts and liabilities for labor, services or material that went into the construction of the building, etc., before any recovery may be adjudged in favor of plaintiff, personally, and to that end the referee shall report all such debts, claims and demands as shall appear to be justly and properly due therefor at the time of the hearing, etc.
The referee, after hearing evidence and argument, made his *Page 233 report to February Term, 1916, sustaining the positions of the defendant, and finding, in effect, that plaintiff had voluntarily and wrongfully abandoned the contract; that nothing was due him personally for work and labor, and allowing defendant, by way of counterclaim, $600, increased pay to architect, and $1,061.96 for delay of 158 days in completion of building incident to defendant's default.
This damage for delay was allowed, not at $25 per day, but on the basis of the interest on the value of the building, as contemplated and provided for in the contract.
The court sustained in full the report of the referee, adopting the same as the judgment of the court, and plaintiff, having duly excepted, appealed.
There was appeal also by certain material men who had been allowed to formally intervene for the purpose, and who excepted to report of referee in not allowing them a proper pro rata in the sum of $4,829.31, balance due on account after completion of building. PLAINTIFF'S APPEAL. (217) At the time plaintiff abandoned the contract, there was nothing due him by reason of labor performed or materials furnished, and the referee having found further that the abandonment was in plaintiff's own wrong as to the executory features of the agreement, the recognized position in the law of ordinary contracts should prevail — that one party to a contract cannot maintain an action for its breach without averring and proving a performance of his own antecedent obligations (Ducker v. Cochrane,92 N.C. 597), a position approved in McCurry v. Purgason, 170 N.C. 468;Supply Co. v. Roofing Co., 160 N.C. 445; Wildes v. Nelson, 154 N.C. 590;Corinthian Lodge v. Smith, 147 N.C. 244; Tussey v. Owen, 139 N.C. 457, and many other cases.
Plaintiff does not controvert this as a correct legal proposition, but contends that, although he placed this inside furnishing work in the building before the plastering had dried, and refused to take it out when directed to do so by the architect, contrary to an express provision of the contract, he was justified in his refusal because one G.S. Holland, who stayed at the building, representing the architect, saw him putting this wood trimming in, and made no *Page 234 protest. Undoubtedly, a stipulation of this kind might be waived by the owners or by an agent having proper authority in the matter, but the facts, as declared by the referee, do not in our opinion show any such acquiescence or waiver as to justify a departure from this provision of the contract. It appears that the architect resided in Rocky Mount and came to Greenville only when he considered his presence necessary to a proper supervision of the work; and while Holland, his representative on the ground, did see the contractor placing the inside woodwork in breach of the agreement, the finding of the referee on this point is: "That soon after plaintiff began to place the finished woodwork and trimmings in the building, as heretofore set forth, and soon after Holland and the owners became aware of it, J. C. Stout, the architect, came to Greenville in person, and after he had seen the building, and especially the situation in reference to the plastering and finishing, he notified the contractor that this work would not be accepted under the contract," etc.
Plaintiff having admitted he acted here in violation of the contract stipulation, the burden is on him to justify his conduct and the facts disclosed in this finding of the referee, as stated, fails to establish either acquiescence or waiver.
On the damages, the referee, favoring the defendant, held that the $25 per day, stipulated for by the contract in case of delay in completing the building, was in the nature of a penalty, and awarded damages for this period, estimated by the interest on the capital invested, a course approved in several cases with us on the (218) subject. Furniture Co. v. Express Co., 148 N.C. 87; Rocky Mount Mills v. R. R., 119 N.C. 693; Foard v. R. R., 53 N.C. 235. And the $600 allowed for the architect was by reason of extra services rendered necessary by plaintiff's breach of the contract and directly incident to it.
On careful consideration of the record, and the very full and intelligent report of the referee filed in the cause, we find no error which gives the plaintiff any just ground of complaint, and as to him the judgment is
AFFIRMED.
APPEAL BY CERTAIN MATERIAL MEN, CLAIMANTS, AND DESIGNATED IN THE RECORD AS INTERVENORS.