delivered the opinion of the court:
On the 19th day of June, 1852, W. H. Moore, John Moore and W. H. Jones, as commissioners of the county court of Washington, entered into a contract with Caruthers & Applegate for the construction and erection of a bridge of a designated description, at the price of $5,600, across Chapline river, on the road leading from Maxville to Bloomfield, at Beauchamp’s old mill. This contract appears to have been reported to the Washington county court, and there filed, but it was neither ratified nor rejected.
On the 23d of the same month, the said Moores and Jones addressed to Caruthers and Applegate the following note, in substance:
“We send you a few lines to let you know that we want you to come and commence our bridge as soon as you can; we want to see the work under *676head-way, and we will guarantee to you the money according to contract.
Yours, very respectfully,
W. H. Moore, W. H. Jones, John Moore.”
And, on the 1st day of July, 1852, Wade H. Moore, and Joseph Neal executed to Caruthers & Apple-gate the following obligation:
“Whereas, John Moore, Wade H. Moore and Wilson H. Jones, as commissioners appointed by the county court of Washington, have made a contract for the building of a bridge on the road leading from Maxville to Bloomfield, across Chapline river at Beauchamp’s old mill, with Caruthers & Applegate, and the said Caruthers & Applegate not feeling willing to commence the work under the present order of said court, we, the undersigned, agree to become individually bound for the payment of five thousand six hundred dollars for the building of said bridge in the same way and time, as set forward in said contract, viz: Sixteen hundred and sixty-six dollars to be paid on the 1st day of October next; nineteen hundred an sixty-seven dollars to be paid on the first day of October, 1853; and the balance, nineteen hundred and sixty-seven dollars, payable the first day of October, 1854. Witness our hands this 1st July, 1852. Wade H. Moore,
Joseph Neal.”
Caruthers & Applegate, on the 4th day of April, 1855, instituted suit against John Moore, Wade H. Moore, Wilson H. Jones and Joseph Neal, in which they set forth, at large, said contracts and letter of request, averring that the county court of Washington not having ratified the contract made with their commissioners, and made it binding on themselves, they did not intend to do anything towards the building of the bridge, until competent persons were bound for the payment of the work, and averring that Wade H. Moore, John Moore and W. H. Jones, by *677virtue of said letter of request, of 23d of June, 1852, bound themselves, individually, to guarantee the payment to the plaintiffs. They also aver that, as further inducement and as further guaranty to the plaintiffs for the payment of the work, the defendants, W. H. Moore and Joseph Neal, executed and delivered to them the said obligation of July 1st, 1852. The plaintiffs then aver that they had built the bridge according to their contract, and had done and performed all things which they had undertaken to do and perform, and they pray judgment against the defendants for what remained due for building the bridge, and which the defendants had refused to pay, &c.
The defendants, together with the county court of Washington, who united with them in their defense, filed their answer and counter-claim, denying that the bridge had been built according to the contract, but that the plaintiffs had failed to do so in every particular, stating that they had paid the plaintiffs the sum of $1,666 and upwards and that, by reason of the plaintiffs’ failure to comply with their contract, the defendants had sustained damages to the amount of $6,000.
The plaintiffs filed a replication to the answer and counter-claim of the defendants, acknowledging the payment of said sum of $1,666 and upwards, and reiterate the averments that the bridge had been built according to contract, and aver that the defendants accepted the bridge, and that they and the community, at large, used the bridge for-months after its completion and before it was washed away. The county court, who had irregularly and improperly united in the defense, afterwards withdrew from the cause.
The issue, and only issue, upon the petition, was performance or non-performance, on the part of the plaintiffs, of the stipulations made by them to build a bridge of the specified dimensions, &c. This was the only inquiry upon the petition. The plaintiffs, *678in their petition, did not aver, or rely upon, a waiver of defective construction by the defendants, and an acceptance of the bridge by them, but they relied upon performance.
1. Where a contract is to perform work at price, payable in installments,the the work and its acceptance is precedent to pay simon that point ia a suit for the price to be paid is immaterial, (Gentry vs. Burnet, 2 J. J. Mardan, 320.)Now the contract of June 19, 1852, bound the plaintiffs to build a bridge of particular dimensions, . £ and of a particular description, but fixed no time for completion thereof; and the money to be paid to the plaintiffs, was to be paid in installments, the first installment to be paid on the first day of October, 1852; the second, on the first day of October, 1853; and the third, on the first day of October, 1854. The Payment of the money, nor any installment thereof, vvas made to depend upon the performance of the work, or completion oí the bridge. 1 he payment ^ie money was not dependent upon, but independent of, performance on the part of the plaintiffs. And the other undertakings on the part of the defendants, as manifested by the letter of request of June 23d, 1852, and the contract of July 1st. 1852, refer to the original contract, and agree to be bound for the money as therein stipulated. No alteration is made, by these subsequent undertakings, in the original contract, rendering the obligation of the defendants to pay the money, dependant upon performance. These subsequent obligations may be regarded as dependent upon the commencement of the work, but not upon the performance or completion thereof, they were entered into to procure the commencement of the work, but defendants were to make payment at the times, and in the manner provided for in the original contract of June 19th, 1852. It was, therefore, unnecessary for the plaintiffs to aver performance, in order to maintain their action for the money, and the issue formed on this averment was immaterial. (Gentry vs. Barnett, 2 J. J. Mar., 320.)
The only material issue was that formed on the counter-claim,settingup a right to damage forthe alledged failure of the plaintiffs to build such a bridge as they had undertaken to build. The reply to the counter*679claim not only avers performance, but an acceptance of tbe bridge after it had been finished. According to the issue, thus made by the replication, it devolved upon the plaintiffs to prove to the satisfaction of the jury, either that they had erected such a bridge as they undertook to erect, or that the defendants accepted it, sub modo or absolutely.
2. In a suit for compe usatioa for building a bridge, intended for public use, the fact that it was used by the public so sooa as it was in a condition to be used, did not authorize a jury to infer that it haft been accepted as built according to contract, especially when those bound to pay for it had expressly rofua- ' ed to receive it.According to the testimony in the record, upon the subject of acceptance, we are of opinion that there was no sufficient evidence of acceptance to authorize the jury to conclude that the bridge had been accepted, either sub modo, or absolutely, waiving all objections to insufficiency or defectiveness of construction. It is manifest that the bridge was designed for public use and convenience, notwithstanding a few private individuals undertook to pay for its construction, and, after it was erected, whether it had been done according to the requirements of the contract or not, it was natural for the defendants and the community to open roads to it and use it, if it would answer the purpose of a bridge at all, without any intention whatever on the part of the defendants, to waive any defectiveness of construction, and to accept the bridge as built according to contract — nor did the payment of a part of the contract price, after the bridge had been erected, strengthen the testimony upon the subject of acceptance — the defendants, as we have seen, had agreed to pay the money, relying upon the undertaking of the plaintiffs to build the bridge of specified dimensions, strength and finish, and had not made the completion of the job according to contract, a condition precedent to the payment of the money. Besides, although the bridge may not have conformed to the contract in the opinion of the defendants, they may have esteemed it as worth something to themselves and the community, and have been willing to pay something, and have conceived themselves bound to pay something, if not upon the contract, upon a quantum, vale-bat. It is difficult to see how there could well be an *680implied acceptance of such a work as this, it was not, and could not be wholly appropriated to the use of the defendants, and they and the community would as naturally use, and travel over it, and open roads to it for their convenience, as if it had been accepted. In this case, however, there was an express refusal to accept, and, considering that express refusal, there was certainly no testimony from which the jury were authorized to infer that there had been an acceptance, and the instructions upon this subject were inappropriate and improper.
It has been seen that we regard the defendants as individually bound upon their contracts, not that we regard the two Moores and Jones individually bound upon the original contract. We do not decide whether they are not, but, by the subsequent agreements, they became bound to pay the money as stipulated for in that contract. It is true that the Moores and Jones in their letter of request to Caruthers & Apple-gate to commence the work, say that they will “guarantee” the money according to contract, and, from the employment of the term “guarantee,” it has been argued, that they did not intend to be directly bound, but bound only to see that others should pay the money. It is not necessary to labor this subject, as we think it clear that the undertaking was direct, and was intended to impose upon themselves a direct obligation to pay the money, this is the sense in which they used the term “guarantee.”
There was no error, in our opinion, in the refusal of the court to allow the amended answer to be filed, which averred that Caruthers & Applegate, at the time the original contract was entered into, when inquired of and asked what Caruthers’ & Apple-gate’s improved plan of building bridges was, pointed to the bridge at Taylorsville, as built upon that plan. The contract bound the plaintiffs to build the bridge according to Caruthers’ & Applegate’s late improved plan, and there was no utility in setting up the fact in the pleadings, that the plaintiffs point*681ed to the Taylorsville bridge as being on that plan; upon the issue of performance or no performance, the question of what was that plan, was involved in the issue, and was a matter of inquiry, the fact that the plaintiffs, themselves, said that the Taylorsville bridge was built upon that plan was testimony of a strong character that such was the fact. Whether the bridge which is the subject of controversy, was built upon the late improved plan of Caruthers & Applegate was a matter of fact to be ascertained by the jury.
3. When a counter-elaim is relied upon, and there is an issue upon its validity and an immaterial issue upon the plaintiffs’ claim, the plaintiff cannot have judgment for his demand; but if anything be found due to defendants on their counterclaim, the plaintiffs’ claim should be to that extent reduced, if the count er-claim exceed the plain tiffs’ demand, the judgment should be for the defendant to the extent it may exceed the plaintiffs’ demand.It might be concluded that, inasmuch as the issue formed upon the petition was immaterial, the plaintiffs would be entitled to a judgment as for want of a sufficient answer thereto, but not so according to the Code, as we understand its provisions, until a trial by the jury upon the issue formed upon the counter-claim. If, upon the trial of this issue, the jury should find damages in favor of the defendants to an amount equal to the demands of the plaintiffs, the finding should be in favor of the defendants, and if they should find damages of a less amount than the demands of the plaintiffs, they should give credit for this amount, and find for the plaintiffs the remainder. But if the defendants should, in the opinion of the jury, be entitled to nothing, then the plaintiffs should have judgment for their whole claim.
It is not necessary, after what we have said, to notice the instructions in detail. We have shown that the judgment will have to be reversed, and the principles which we have laid down will be sufficiently obvious upon another trial.
The judgment is reversed, and the cause remanded for a new trial and further proceedings not inconsistent with this opinion.