#### EMPORIA CONCRETE AND CONSTRUCTION COMPANY v. BOARD OF COMMISSIONERS OF GRANVILLE COUNTY.

(Filed 30 October, 1912.)

Contracts — Interpretation—Monthly Estimates — Final Estimates'— Measure of Damages — Evidence—Quantum Valebat. ,

In an action to recover upon a written contract to construct and repair a public road, it thereunder appeared that payments to the plaintiff were to be made, from month to month, upon the certificate of the defendant’s engineer as to the amount and value of the work performed by the plaintiff within the month, deducting 10 per cent until the final completion and acceptance of the entire work, when the percentage so retained and the balance due, as then estimated and certified by the engineer for the whole work, should be paid, expressly providing that in making the final estimate the engineer should not be bound by the preceding estimates and certificates which were to be given by him monthly, but that they were to be considered as “approximate to the final estimate.” The defendant annulled the contract before completion, as it had a right to do according to its provisions, and in the plaintiff’s action to recover for .the balance due, it is Held, the measure of its damages was the reasonable value of the work done that had not been received in the monthly payments, the monthly estimates by the very terms of the contract not being conclusive, but only to be received as evidence of the value of all the work which the plaintiff had done.

*304Appeal by plaintiff from Carter, J.-, at April Term, 1912, of GRANVILLE.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.

Buforck & Palmer and T. T. Ilicks for plaintiff.

B. S. Royster and Graham & Devin for defendant.

"Walker, I.

Tbis action was brought to recover $1,838.50 for work and labor done and materials furnished by tbe plaintiff for tbe defendant, in tbe construction and reparation of fifteen miles of a public road, under a written contract between the parties. It was stipulated therein that tbe work done in each month, which tbe engineer certified bad been performed in accordance with tbe contract, should be paid for on tbe 15th day of tbe next month, but that 10 per cent should be deducted and withheld by defendant until the final completion and acceptance of tbe entire work, when tbe said percentage so retained, together with tbe balance due, as estimated and certified by tbe engineer, for tbe whole work, should be paid by the defendant. Provision was made for a final estimate by tbe engineer, but it was expressly agreed that tbe engineer, in making tbe final estimate, should not be bound by tbe preceding estimates and certificates which bad been made from month to month, but they were to be considered as “approximate to tbe final estimate,” and were not to be taken or construed as an acceptance of tbe work or a release of tbe contractor from responsibility therefor, until tbe final estimate bad been made and tbe work, in its entirety, accepted as completely performed according to tbe terms of tbe contract. It was also provided that tbe contract could be annulled at tbe discretion of defendant, in which case tbe contractor (plaintiff) should be paid “pro rata according to tbe amount of work remaining to be done, under tbe contract, as compared with tbe cost of tbe whole work specified therein,” with tbe right reserved to tbe contractor, if tbe work should be resumed, to receive tbe prices fixed by tbe contract for tbe same> that is, for any work thereafter done. It appears that monthly estimates, and certificates thereof, were made, as *305required by tbe contract, but tbe work was suspended or discontinued by tbe defendant, wbo complained of defective construction, but tbe case was given to tbe jury under an instruction wbicb assumed, and so directed tbem, that there bad been no violation of tbe contract by tbe plaintiff.

Tbe only question in tbe case was, bow much tbe plaintiff was entitled to recover for tbe services rendered and materials furnished in tbe performance of its part of tbe contract. There was no final estimate of tbe work, 'and no certificate given by tbe engineer that all tbe work bad been done according to tbe contract. But plaintiff contended that, in tbe absence of such an estimate and certificate, tbe previous monthly estimates and certificates should be regarded as final and conclusive of tbe amounts due the plaintiff, and requested, the court to so instruct tbe jury, wbicb request was refused, and plaintiff excepted. In their brief, counsel for plaintiff very frankly stated that, if plaintiff was not entitled to this instruction, tbe judgment should be affirmed, -and they abandon all other exceptions appearing in tbe case. Tbe court instructed tbe jury to find what was tbe value of plaintiff’s work, as be would be entitled to recover its reasonable worth. The jury were told that, by tbe very terms of tbe contract, tbe monthly estimates were not final and conclusive, and that as no final estimate was made, they should consider all tbe evidence and assess plaintiff’s damages at such sum as they found to be tbe reasonable worth of what was done in tbe performance of tbe contract and for wbicb no payment bad been made. Tbe jury returned a verdict in favor of plaintiff for $500. Exceptions were duly noted and an appeal taken from tbe judgment on tbe verdict. We think tbe instruction was correct. His Honor would not have been warranted in a charge to tbe jury that tbe monthly estimates and certificates should be final and conclusive, when tbe contract expressly states that they shall not be. Such an instruction would have tbe effect of making a contract for tbe parties to wbicb they bad not assented, instead of construing tbe one they bad made. Tbe contract evidently contemplated two sets of certified estimates, those to be submitted monthly and, at tbe completion *306of tlie work, a final estimate which should be conclusive when duly certified as correct by the engineer. . If the monthly estimates covered all the work done and should be taken as prima facie correct, the instruction would still have been erroneous, as it required the court to charge that they were final and conclusive, and entitled the plaintiff to recover $1,786.10 and interest. The court gave the plaintiff the full benefit of the monthly estimates, as evidence of the amount due the plaintiff, and the charge was as favorable, in this respect, as the law permitted it to be.

Plaintiff’s counsel relied on Burgin v. Smith, 151 N. C., 561; McDonald v. McArthur, 154 N. C., 122; Sweet v. Morrison, 116 N. J., 19; Condon v. Railway Co., 14 Grattan, 302, and other cases of their class, but we think they have no bearing upon the question now before us. If there had been a final estimate, or even if the work had been accepted under certified monthly estimates, without the provision in the contract as to the inconclusive character of such estimates, those cases might, and perhaps would, be pertinent authorities; but the facts in this case, and those upon which the decisions were based in the cases cited, are essentially different. In the absence of any stipulation fixing the price of the work performed by plaintiff, it was entitled to receive its reasonable worth, and no more. This the jury has ascertained to be $500.

A contract similar, in substantial respects, to the one upon which this suit is based, was considered and construed in O’Brien v. Mayor of New York, 139 N. Y., 543, and the conclusion we have reached is in full accord with the decision in that case. It' may be that the facts disclosed in the record are stronger in favor of the defendant than those in the case we have cited were in favor of the defendant in that case. If there is any difference in the two> cases, it is in favor of defendant in the case at bar.

"We find that there was no error committed at the trial.

No error.