If the contract bearing date January 5th 1860, set forth in the third count of'the declaration, had been an ordinary agreement for the payment of money growing out of a loan, or sale of merchandise, or purchase of land, or other similar transaction, the interpretation for which the defendant contends would have been the true one. It would have been a promise dependent for its fulfilment on the performance of a condition by the promisee. The failure to comply with the condition would have been a decisive answer to the plaintiff’s right to recover. But we think the contract in question is to be interpreted in reference to the subject matter to which it relates, and out of which it arose. It was given on the settlement of the amount due on a building contract. By the well settled rule of law in this commonwealth, when work has been done and materials furnished in the erection of a building on the land of another, under a special contract, for which money is agreed to *428be paid only on the fulfilment of certain stipulations or conditions, a party may recover such sums as the materials and labor are worth, although the special stipulations and conditions of the contract have not been complied with. Smith v. First Cong. Meeting-house in Lowell, 8 Pick. 178. Bassett v. Sanborn 9 Cush. 58. Gleason v. Smith, Ib. 484.
The agreement of January 5th 1860 must be interpreted with reference to this rule of law. At the time the settlement took place and this new agreement was entered into, the plaintiff would have had a right to recover the amount due to him for labor and materials, deducting a proper sum for the deficiencies in doing the work according to the contract. It is not reasonable to suppose that the plaintiff intended to relinquish this right, and to surrender the whole amount due to him for his labor and materials, because there were slight imperfections in the building which could be made good for a much smaller sum. The more reasonable inference is that the new agreement was designed only as evidence of a settlement by which the sum due for the building when completed according to the contract was ascertained and fixed ; and that the condition was inserted only to show that the building was not accepted as having been finished according to the contract, and that the plaintiff was bound to make the specified defects good, notwithstanding the express promise to pay a certain sum of money. It was not a conditional promise, strictly speaking, or an accord and satisfaction. This was the view of the interpretation of the contract which was taken at the trial. The court correctly ruled that the plaintiff was not precluded from recovering on a quantum meruit.
Exceptions overruled.