The opinion of tho court was delivered by
Peck, J.Tho objection interposed by the defendant’s counsel, that the action should have boon covenant instead of assumpsit, cannot prevail. Tho contract was not performed on the part of the plaintiff within the time specified in the sealed instrument for such performance. Whore the time for the performance of a contract on tho part of the plaintiff, specified in a sealed instrument, is enlarged by the parties by parol agreement, tho form of remedy is assumpsit, and not covenant or other action counting upon the contract as under seal. The referee finds that “ tho defendant did not extend the time for the plaintiff to build tho road, though he suffered him to proceed with tho work after tho time specified in tho contract; urged him to underlet a part of tho road to others, which he might have done; remonstrated against his delays, and notified him he should claim damage in consequence thereof” ; and, among other things, he finds that the defendant was present on tho different occasions when tho selectmen accepted certain portions of tho road, and made no objection ; some part of what they so accepted having been built after tho time specified in tho contract for completing the road. Although this docs not bar the defendant from his right to insist on a dcduction from the contract on account of damage by delay, yet it is a waiver of his right to tho technical objection to tho plaintiff’s recovering at all, merely because ho did not complete the whole road by tho time specified in tho written contract. Under such circumstances, assumpsit is the appropriate remedy.
It is further objected on tho part of the defense that the action was prematurely commenced. The defendant’s counsel bases this claim on tho clause of the contract relating to tho manner of payment; that is, tho clause in the contract in which it is stated that one hundred dollars is to be paid on the completion and acceptance by the agents of tho town of Stratton, of each 100 *441rods of road, and all the balance on the completion, and acceptance of the whole road by the agents of the town. It is claimed that the 478 rods of the 778 rods of the road, had not been completed at the commencement of the suit. One hundred rods was completed and accepted in the fall of 1869, and two hundred rods in November, 1870. The referee finds that the plaintiff built the whole road in the manner required by the contract, except the 200 rods accepted in November, 1870, as to which the stumps and roots were not sufficiently removed ; that November 8, 1870, the plaintiff claimed that the remaining 478 rods of the road was completed according to the contract, and took off his teams, but the selectmen refused to accept this part of the road ; and it does not appear that the plaintiff did any work on the road after the commencement of the suit.
The refusal of the town to accept this part of the road after it was completed according to the contract, till the defendant expended the $41 after this suit was commenced, will not defeat the plaintiff’s action. The contract between the parties is very specific as to the manner in which the road should be built; and the first 300 rods having been accepted, when the plaintiff had built the last 478 rods of the road according to the specifications of the contract, and especially after he had afforded a reasonable time for examination and acceptance of it, he was entitled to his pay. The plaintiff’s right to compensation for building the road did not depend on the actual acceptance of the road by the .town or its agents, the party in adverse interest. If so, by a wrongful refusal to accept it, the plaintiff might be defeated altogether of ever recovering any compensation. If his right to an action can be postponed' by such wrongful refusal, it could thereby be defeated entirely. This objection to a recovery cannot prevail.
As to the amount the plaintiff should recover, the referee finds the balance due the plaintiff on the basis of the contract price for the construction of the road, eleven hundred twenty-eight dollars seventy-seven cents, subject to the opinion of the court as to the plaintiff’s right to maintain this action, and as to the defendant’s right to have certain items of special damage deducted.. It is' to be inferred from the exceptions from the amount of the *442judgment rendered, that the county court allowed to the defendant the item of $100 on account of the defects in the 200 rods of road accepted in November, 1870, and the $41 for work the defendant performed upon the 478 rods, in order to induce the selectmen to accept it; and disallowed the $52 loss on rent of house, and the $23 cost of making the winter road in the winter of 1869-70. We think the $52 item is left, upon the facts reported, too conjectural and remote to be regarded as damages so far naturally or necessarily resulting from the delay in the completion of the road, as to be allowed as damages. The $100 which the referee finds it would have required to finish the two hundred rods of road accepted in the fall of 1870, the defendant could not have lost upon his contract with the town, as the town accepted that part of the road. But if the referee had found that this deficiency in this part of the road caused damage to the defendant to that amount, the defendant would be entitled to it. But when the referee simply finds on this point, that it is impossible for him to compute the damage this deficiency caused to the defendant, or how much less the road was worth for his purposes on this account, without saying, except by inference, that it was any damage, this court cannot assume any given sum as damage which he thereby sustained. The $100, therefore, must be disallowed. The item of $23, the cost of constructing the winter road by the defendant in consequence of the road not having been completed by the plaintiff by the time stipulated, is a proper item to be allowed as damages; for although the road the plaintiff contracted to make was a public highway, which the defendant had contracted with the town to construct, yet it was mainly to accommodate the defendant in reaching his tract of timber lands in connection with his business, which must have been known to the defendant, and hence this item of damage is of a character that must be regarded as in the contemplation of the parties at the time of the execution of their contract. As to the item of $41, for labor done by the defendant on the 478 rods of road, it is conceded by the plaintiff’s counsel in argument that it was properly allowed to the defendant by the county court, and therefore nothing need be said in relation to it.
*443The result is that the judgment of the county court is reversed, and judgment rendered for the plaintiff for the same amount, with the exception that the $100 damages on the 200 rods of road, allowed by the county court, is not allowed to the defendant ; and the $23, for making the winter road, not allowed by the county court, is allowed to the defendant.