By the court,
Sebastian J.This' was au assumpsit instituted by Byrd against Bertrand, to recover the price for the building, completing and finishing of a house. The declaration contains a count in indebitatus assumpsit, and quantum meruit for labor done, and a quantum valebant for materials furnished, together with a count for money paid, &c. There is no special count upon a special agreement.
In examining the questions raised by the several bills of exceptions, it is necessary to ascertain and fix the rights and duties of the parties, resulting from the forfeiture of the original contract, by Byrd, Hollis, and Dunahay, and the new contract made by Byrd and Bertrand.
The authorities conflict upon the question, whether the time of performance of a written contract can be extended by parol agreement of the parties. The general rule upon both principle and policy is, that a written contract mutually adopted by the parties for the security of these rights, and as the highest evidence of their intentions, shall not be impaired or impeached by parol. In these cases where it has been permitted, the extension of time by parol has been recognized partly, from the considerations, that it is favorable to the performance of contracts, and partly upon the ground, that it is a waiver of the performance at the time, which may always be by parol, and that the new contract, when performed, is in the nature of accord and satisfaction. The doctrine, however, does not apply to the case before us, only to strengthen the view, that the contract entered into by Byrd and Bertrand was a new agreement, and not a continuation of the old one — a distinct contract, in which the rights and liabilities of the parties were fixed by its terms and obyious intentions. The abandonment of the work by the contractors, who absconded, leaving the house unfinished, while the time for its completion had elapsed, amounted to a termination of the contract: moreover, it had expired by its own terms, and could not be resuscitated by parol. Littell's Sel. cases, 150. The work had become forfeited to Bertrand, and his right to the stipulated damages fixed. In making the new contract, Byrd acted for himself, and not for his co-partners, whom he could no longer bind. The parties were not the same, and this extinguished the entirety of the old contract, and fixed the line of separation between them. It is essential to either the continuation, or revival of the former agreement, that it should be between the same parties. A contract is an entire thing, and when altered in any of its integral parts, is not the same contract. The former agreement, expired in point of time and abandoned in point of tact, was preserved by the new contract as a mere memorandum, incorporated for greater certainty as to terms and specifications. It stands upon the same footing, as if all the stipulations applicable to the unfinished condition of the building, were actually rehearsed between the parties. The entire transaction resolves itself into two distinct, independent contracts, in which the rights and liabilities accruing, could only be adjudicated in two separate actions of different forms and between different parties. From the testimony, as well as the admission of Byrd, it is evident, that their agreement looked only to the future, binding Byrd to complete the house according to the specifications, and Bertrand to pay him according to the terms of the original contract. It was, virtually, an agreement to finish the building for the residue or balance of (he contract price. This fixes the rights of the parties upon a plain and intelligible basis, and frees the cases from any difficulty.
In the trial of this cause, the circuit court evidently regarded this action as embracing not only the work done by Byrd, but also the extra work done by the original parties. This blended the two transactions in one, and contravened the fund amental principle in pleading, that distinct causes of action, in favor of different persons, cannot be joined in the same suit. The work and materials, under the original contract, were forfeited. It is no answer to this, that the forfeiture may have been waived. The legal right of action, if any, remained in the joint contractors, and we know of no principle, by which Byrd could succeed to their joint rights. In this view, the circuit court rightly excluded the proof offered by defendant, as to the defect in the foundation, and certainly erred in refusing to charge the jury that, under the pleadings, Byrd “could not recover any thing for work done under the written contract.” The second charge given by the court is, in substance, that if the parties entered into a new contract to complete the house according to the original contract, plaintiff is entitled to recover in this action, for work done under the original covenant. This charge, is erroneous, as it authorized Byrd to recover for work done by, or under the contract with himself, Hollis and Duna-hay. If the court meant by this instruction, which it probably did, that it was the price unpaid, as fixed by the covenant, then we can see no objection to the opinion; but as it stands in the record, it is possibly too unqualified, and probably mislead the jury.
It was also proved, that the connecting walls, or pantry, between the south wing and kitchen, was contructed by Robins, for which defendant promised to pay him. This was not embraced in the original plan of the buildings, and whether it was done by Robins, upon his own account, or for Byrd, Dunahay and Hollis, it could not, according to the foregoing principles, be embraced in this action. No person can voluntarily constitute himself the creditor of another, without his consent. By paying the amount of such extra work to Robins, Byrd could acquire no claim or right, unless it was done by the request and sanction of Bertrand, and the instruction to this effect, asked by the defendant, was improperly refused. The doctrine was correctly stated in the fourth instruction required by the defendants, and should so have been given in charge to the jury. It was upon a point upon which testimony was given, under the money count, and in the qualification or substitute given by the court, we think the law was too broadly laid down, and upon a point which did not fully meet with the doctrine, which the court hjad refused to give in charge to the jury.
A question has been raised, whether the plaintiff, having made a special agreement, and not having performed the work according to it, can recover upon either count in the declaration. The doctrinéis now well settled, that in all cases where there is a special agreement, the terms of which have been performed, so that nothing is left but a pimple debt or duty, the plaintiff may recover in indebitatus as-sumpsit, the specific price agreed on. Chesapeake & Ohio Canal Co., vs. Knapp et al. 9 Peter’s Rep. 566. The same point was adjudged in Bank of Columbia vs. Patterson's Ex'rs. 7 Cranch. 299, in which the court say that “no principle involved in the action of assumpsit can be maintained by a greater force of authority. But where the special agreement remains open and unperformed, or is for any thing else than the payment of money, indebitatus assumpsit will not lie. Where there has been a special agreement performed, but not according to its terms, and where there has been a deviation from them, there has been more difficulty in the question. It has been considered, and so ruled by Mansfield in 3 Taunt. 52, that the entire performance in such cases, was in the nature of a condition precedent, and that where the performance was not in accordance with the terms of the special agreement, no recovery could be had either upon the special countor a quantum valebant. The rigor of this rule has certainly been relaxed, and now seems to be, that in such cases the defective performance is ground for mitigation of damages only, where the defendant has voluntarily derived any benefit from it. Buller's N. P. 139. Chitty Ev. If the defendant accepts the performance, or sanctions a departure from .the terms of the special agreement, the plaintiffs may recover upon the contract, so far as it can be traced, and for the deviations under the general counts. This is certainly true, in all cases where the party, from the nature of the contract, can reject or accept the performance. But in a case where the work performed, such as a building, cannot be rejected without the owner giving up his freehold, the doctrine that use or occupation of a building amounts to acceptance, so as to bind the defendant for the contract price, has not been adopted. 6 Monroe's Reps. 672. 3 Ark. Rep. 331 and 2. It would be evidence that a benefit had been derived by the party, and to the extent of such benefit the defendant would be liable. It may appear hard, that a person who has contracted for one thing and receives another, should be compelled to pay for it. To this it may be answered, that it is more conformable to justice, that he who has the possession and enjoyment of the labor and materials of another, shall be held to pay for them, so as in all events he loses nothing by the breach of contract. “The owner is entitled to the benefit of the contract, and therefore, he should pay in damages only so much as will make the price good, deducting the loss or damage occasioned by the variation from the contract.” 7 Pick. Rep. 186. This is to be understood only of cases where the deviations are small, and made with honest intentions substantially to go by the contract. Cases of a flagrant or radical departure from it would be a fraud, and furnish, on that score, an ample defence against imposition and injury.
By the application of these principles, it is obvious that the circuit ■court rightly refused to give several instructions asked for by the defendant, and which questioned the right of the plaintiff to recover in this action. It is also plain, that the court mistook the law in instructing the jury, that the acceptance of the house was equivalent to an implied contract to pay for the extra work. It is certainly true,'that Bertrand cannot be liable for the extra work, without his sanction, expressed or implied; and although for this purpose the acceptance of the house, which could riot be by piece-meal, would not be evidence, yet other facts or slight circumstances of approval would be sufficient. Even the knowledge, that such work was performed without his dissent or cpposition would bind him. Upon the whole, we are of opinion that in the various instructions given by the court, an undue weight was given to the fact of the occupancy of the house by defendant, and which, upon so much of the plaintiff’s case as consisted of a claim for extra work and for money paid for defendant, the jury were misled by the rule laid down for their government.
The case must, therefore, be reversed,’'and remanded with instructions to proceed in the case, not inconsistent with this opinion.