delivered the opinion of the court.
The instruction asked by the plaintiff should have been given, and those presenting an opposite view by the defendant should have been refused. The contract entered into by the plaintiff to do the work on the street, for which the defendant’s lot was chargeable, provided that payment should be made when the same was accepted by the board of public works. The board was composed of three men, one of whom examined the work and accepted it, and the others refused and neglected to make any examination, and had nothing to do with its acceptance. The non-action or default of some of the members surely cannot have the effect of depriving plaintiff of all compensation for his labor and materials. If he has performed his contract he is entitled to pay, and whether there has been a performance is a question of fact to be determined upon by the evidence. It is true if a party makes a contract he must abide by it before he can recover on it; and if an approval by an outside party is made a condition precedent, such an approval must be obtained in a suit upon the contract. But here the action is not founded upon the contract. The contract is merely used as an instrument of proof, and if the plaintiff shows that he has done the work under the agreement, he should be permitted to recover whatever he may show himself justly entitled-to.
Judgment reversed and cause remanded.
The other judges concur.