The opinion of the Court was delivered at the ensuing July term in Waldo, by
Mellen C. J.It is admitted that this action cannot be maintained on the special contract, as the road was not completed at the time of the commencement of the suit. The only question is, whether the plaintiff,' upon the facts reported, is entitled to recover on the general count for services performed. The noncompliance with the terms of the special contract was not occasioned by any fault on the part of the defendants, but still the action is maintainable if the town has in any mode waived all objections to such noncompliance. Such waiver may be either express or implied from circumstances; as if A contract to build a house for B of a certain description and complete it within a certain time, for a specified sum, but should fail in complying with the terms of the contract; still, if'B should take possession of the house, or in any way accept ' it, and avail himself of A’s labor and expense in building it, he may recover a reasonable compensation for his labor and expense.
*79This is no more than what is required by the plainest principles of justice. It is said, however, that in the present case, the town has done no act amounting to an acceptance of the road, either express or implied ; that the public, and not the town, have made use of the road, and availed themselves of the plaintiff’s labor and money, and that from such facts, no waiver of objection can be inferred ; still, the town has been benefited by such labor and expense, probably to the full amount of their value. The evidence of waiver from the abovementioned circumstances, is certainly of a very equivocal character ; but there is one fact in the case which, in itself, amounts to a waiver of objection on account of the plaintiff’s noncompliance with the special contract. By this contract, one half'of the sxim of $580 was to be paid when the road should be completed, and the other half in one year from that time; and the report slates that the town paid the first half, knowing that eighty-six rods of the road had not been completed, and making no objection on that account. In a case where a distinct and exclusive appropriation of the road to the use of the town, could not, from its nature, be proved, the beforementioned payment, voluntarily made when there was no legal ground on which the same could have been demanded, we must consider as an acceptance of the benefit of the plaintiffs services, and a waiver of all objection to his right to recover the remaining half of the agreed sum, on completion of the road; and as it was completed at the expense of the town, and the estimated expense of such completion was deducted by the jury. we perceive no objection to the action.
Judgment on the verdict.