The declaration in this case is in assumpsit. The first count is on an agreement which is set out in hceo verba. This agreement provides that the plaintiffs below should, within a certain time, build a court house for the county, according to certain plans and specifications referred to. By the agreement, the county undertook to pay the plaintiffs two thousand dollars on a day named, and to give its bond for one thousand dollars when the foundations should be laid and the stone work done, and then the balance of the payments, amounting to $15,000, are specified.
The second count is on a similar agreement, which is set out in substance only. Then follow the common counts.
The first two counts aver that the foundations were up and the stone work completed, but that the defendant refused to accept the work under the contract, and pay the county bond as stipulated. On the trial, the plaintiffs introduced, in evidence, the agreement declared on, and proved that they had completed the foundations and stone work, according to the terms of the agreement, as the jury found; and that the county judge refused to accept the work, alleging that it was not done as required by the contract, and refused to deliver the bond; and rested. Among other things, the defendant below asked the court to instruct the jury, “That the refusal of the county judge to accept the work and issue the bond, did not authorize the plaintiffs to abandon the contract, and recover such profits as they might have made had they completed the work.” This instruction the court refused to give, to which the defendant excepted, and this presents the only question which we are called upon to decide in this cause. This is substantially the same question as that decided in Palm and Robertson v. The Ohio and Miss. R. R. Co., ante p. 217. And if there be any difference, it is in favor of that case. The plaintiffs could only recover for prospective profits where they have been prevented from going on, either by some affirmative act of the defendant, as by being ordered to desist from further work, or by the omission to perform some condition precedent to the further prosecution, as to furnish or do something necessary to its further progress. As shown in the case referred to, payment of installments of the compensation money will not be held to be such a condition precedent, at least, unless it is so made by the express and positive provisions of the agreement or contract; and the payment of this bond must be considered in the same light. Indeed, in this case, the undertakings for the payments of the price of the work are more independent in their character than were those in the case of Palm and Robertson, and the agreement to build and complete the court house seems to be quite independent of the payment 0f the money; and the agreement to pay the first two thousand dollars, which was to be paid on a day specified, is not made to depend in any way upon the progress of the work; hut "the county obligated itself to pay it at all events on that day, as much so as if it had been put in the form of a note or bond. The next payment, which is the one about which the dispute arose, was dependent upon the completion of certain portions of the work, but it was dependent upon that alone; and when that was performed, it ceased to be dependent, and occupied the same independent position as the former, save only the necessity of the proof that the condition had been performed. Then it became a simple money demand, or, rather, a demand for the $1,000 bond, upon the refusal to deliver which a cause of action at once arose in favor of the plaintiffs for its value. It may be that its non-payment might serve as an excuse for the abandonment of the work, had the county sued the plaintiffs for not completing the house ; but if so, it would be upon the ground that the agreement had been rescinded by the mutual consent of all parties.
The instruction should have been given, and the judgment must be reversed and the cause remanded.
Judgment reversed.