delivered the opinion of the Court:
We perceive no error in refusing a continuance by the court below. It was stipulated by the parties that plaintiff might introduce any evidence that would be admissible under any special count that could be drawn on the contract, and defendants might introduce any evidence that would be admissible under well drawn special pleas to the action. Suppose that there had been a special count, claiming extra pay on account of hard-pan excavation, would it not have apprised defendants of such a claim as fully as adding a charge for that item ; and defendants had stipulated as to the introduction of evidence, as though the count was in the declaration. It was, in fact, more than plaintiff was required to do, when he inserted the item, as, by the terms of the stipulation, he could have introduced the evidence without amending his account.
We fail to find that any portion of this item was embraced in .the verdict. Appellees say this item was abandoned on the trial, but we fail to find it noticed in the abstract, nor do counsel refer us to the portion of the record where it may be found, and we have not consumed the time requisite to search the voluminous record in the case.
That there was a breach of contract on the part of appellants, can not be contested. By their contract, they were bound to pay on estimates at the end of each month. But they neglected or refused to pay for the work done in October, for twelve days or more, and a portion of that time after appellees had given them notice that a further failure to pay would be treated as a rescission, and they would be compelled to abandon the work, which the evidence shows they did, not from choice, but from necessity. They show they could not proceed, for the want of means, but could have proceeded to the completion of their part of the contract; had appellants paid them this money. Nor do they show a sufficient excuse for refusing to make payment. Their contract was to pay appellees, and not their hands, sub-contractors or their hands. They had taken a bond from appellee, to secure the faithful performance of their part of the contract. They seem to have relied upon this bond, instead of inserting a clause in the contract authorizing them to make such payments and deduct the amount from the sum they were to pay appellees. Appellants had no right to superadd new terms and conditions to the agreement, but they were bound to perform it as they made and executed it. This was the duty of both parties. Having failed to make payment for the work performed in October on the contract, appellees had the unquestioned right to abandon the contract and to sue for and recover compensation for damages.
The correct measure of damages was adopted by the instructions given for appellees. They informed the jury that they had a right to recover for the work done and not paid for, pro tanto, at the contract price. This has been repeatedly held by this court to be the true rule in this character of cases.
It is objected that there was error in allowing a recovery for interest on the amount withheld by appellants.
The second section of the Interest law, R. S. 1874, p. 614, provides that interest at the rate of six per cent shall be allowed on money after it shall become due, on any bond, bill, promissory note or other instrument in writing. Now, this money became due and payable, under this agreement, on the 3d day of November, 1872, under and by the terms of this contract, and hence it falls within the provision of the statute.
It remains to determine whether the court below erred in rejecting appellants’ set-off for money paid to appellees’ subcontractors and the pay-rolls of their men. They claim that appellees authorized them to make such payments. This they deny, and in it they are corroborated by Col. Hough, who testified they were not so authorized. On the other hand, there are three witnesses who think that such authority was given, but they are not positive and definite as to what was said. We think the evidence for appellees on this question is clearer and more satisfactory than that of the other witnesses.
We do not regard the evidence offered by appellants as preponderating over that of appellees. At any rate, it was for the jury to determine, after weighing it in the light of all the surrounding circumstances, and they having acted upon it, we are not disposed to disturb the conclusion they have reached.
We perceive no error in this record which requires a reversal, and the judgment must be affirmed.
Judgment affirmed.