The opinion of the court was delivered by
Bennett, J.We think the plaintiffs should have judgment for the sum allowed by the county court.
The referee finds due to Higgins on the contract after deducting all payments made, and also the work on masonry done by the defendants and chargeable to Higgins as provided in the contract between them, a balance of one thousand three hundred and twenty-three dollars and ninety-one cents principal.
By the contract twenty-five per cent, of the monthly estimates was to be kept back until a completion of the job, and it was then to be paid in the stock of the company at its par value, and it seems the job was completed about the 1st of January, 1850.
It is claimed that as the defendants paid in cash more than three-fourths of the whole amount of Higgins’ claim, they should be allowed on the excess the difference between the nominal amount of the value of the stock and its cash value when the job was completed. But no agreement is found to make any deduction on any such ground, and without it we must treat the payment of the excess in cash as a waiver of the right to pay so much in the stock of the company. Besides, in the eye of the law, the payment in cash beyond the seventy-five per cent, was voluntary, and to allow the defendants a deduction on the excess would, in effect, enable them to recover back so much of their payment.
The referee has reported that the stock, on the 1st day of January, 1850, the time when the job was completed, was worth *200sixty-five dollars on a share, and this was the time when the stock payment became due. If it be conceded that Higgins could not bring an action for the value of the stock before he had made a special demand, yet we think a sufficient demand was made.
The case finds that before January, 1851, one of the plaintiffs called on the defendants and requested payment, though without specifying the manner of making it, and the defendants at the same time in effect claimed that nothing was due, upon the ground that the excess on the cash payment was equal to the cash value of the stock due on the contract. It is to be assumed that when the plaintiffs made a demand of payment, it was in accordance of their rights under the contract made between Higgins and the defendants, to which contract the plaintiffs had, in effect, succeeded. The demand must have been so understood by the defendants.
The judgment of the county court must be affirmed.