delivered the opinion of the court:
Upon the first contract, which was partly express and partly implied, it is perfectly evident that the defendant was not bound, because the law raised no assumption on his part, by reason of the plaintiff’s entire failure to perform his part of the agreement. .Had the proof ended here, it is manifest that the defendant would have been exonerated from all liability whatever. But the testimony further shows that the first contract being cancelled, the parties subsequently entered into a second implied agreement, by which each became liable according to its terms or legal effect. The plaintiff again undertook to rebuild the saw and grist mills, and upon their completion and delivery the defendant, by an implied promise, as- j sumed to pay a fair valuation for the work and labor done. The acts ' done and performed by both parties unquestionably demonstrate this 1 to be the case.
It appears from the record that the plaintiff, at his own individual cost and expense, employed other millwrights to rebuild the saw and grist mills, and upon their completion they were delivered to and accepted by the defendant. By permitting their rebuilding the defendant agreed that the work might be done for him, and by receiving them after they were finished, he tacitly waived whatever objection he might have made to the sufficiency of the work. He thus ratified V and confirmed the second implied contract by allowing the defendant l to do the 'work for him, (for it is a maxim well settled that he who does j a thing by another does it by himself,) and by receiving the mills after j their completion, the law raises an implied promise on his part to pay j a fair and reasonable compensation for the labor and services performed.
The saw mill, as rebuilt, is proved to be able to cut one thousand or twelve hundred feet of plank' per day, and the grist mill is capable of grinding from seventy-five to eighty bushels of corn meal during the same period of time. The mills that are built are shown to be very nearly equal in value to those the plaintiff undertook to erect in the first instance. But, be that as it may, still they are proved to do good work, and the defendant by accepting them, admitted they were rebuilt in a workmanlike manner, or in such manner as was entirely satisfactory to himself This being the case, he thereby waived his right to object to the sufficiency of the work; and having accepted them, and being now in the enjoyment of their profits, it is surely but just and reasonable that he should be compelled to pay for their rebuilding. The defendant’s liability docs not, as it is supposed, grow out of his first agreement, which was cancelled and annulled; but it accrues on his second implied contract, which he wholly failed to perform. If he is bound by this contract, and that he is seems to us to be almost self-evident, then it must necessarily follow that both the verdict and judgment of the court below were manifestly erroneous, being expressly and violently contrary to the justice and right of the case. If this position be true, the court also erred in not granting the plaintiff a new trial on his motion. The judgment must therefore be reversed, and a new trial awarded.