The opinion of the court was delivered by
Royce, J.The court below evidently regarded the contract which was made between Gregory and the defendant in January Of February, 1867, as legally binding upon the parties, and we think this was right. The relation in which Gregory stood to the parties was such that he must be so far trusted as the agent of the plaintiffs as to make the contract under which the plaintiffs furnished the mill, subject to the agreements and stipulations which he made with the defendant concerning it/and that the plaintiffs, when they took the order for the mill, took it subject to the contract which Gregory had made with the defendant. This view of the case disposes of all that portion of the plaintiffs’ *43account wbicb the auditor has found was outside of or additional to the contract price as agreed upon between Gregory and the defendant. The auditor has found that by the agreement between Gregory and the defendant, the mill was to be completed by the first of March, or in season for the spring sawing in the spring of 18C7, but that it was not completed until about the first of May, 1867, and then worked badly and was imperfect, and that the damage to the defendant in consequence of the mill not being completed at the time when under the contract it should have been, was not less than $125.00; and this sum of $125.00 was allowed to the defendant in ascertaining the balance of $77.27, which the court found due to the defendant.
The bill of exceptions states that no objection was made to the allowance of the damages found by the auditor to have been sustained by the defendant by reason of the failure of the plaintiffs to complete the job by the time agreed. But the bill of exceptions does not state that there was any abandonment or waiver of any legal right growing out of or resulting from the facts found by the auditor. Hence the rights of the parties are to be ascertained and determined from the facts found and reported by the auditor.
The payments made by the defendant to apply on the contract, and which are embraced in the four last items of his account, amounting to $640.00, were made long after the time had elapsed for the completion of the mill under the contract, and with a full knowledge of the damage he had sustained in consequence of the plaintiffs’ failure to complete the mill at the time agreed upon. The defendant could not recover back any of the amount thus voluntarily paid, in a suit in his favor against the plaintiffs; and although he can resist any further recovery on the part of the plaintiffs, he is not, in a suit brought by them, entitled to recover back what he has thus paid. The payments made are to be regarded and treated as a waiver of any claim for damages, to the extent of such payments. And herein the court erred in rendering a judgment for the defendant to recover anything but his costs.
Judgment reversed, and judgment for the defendant to recover his costs.