#### E. G. BREWER AND ORAN A. WILLIAMS vs. JORDAN TYSOR AND ORAN A. TYSOR.

Where the terms of a contract are, that A shall cut a race of certain dimensions, within a certain time, for which he is to receive so much, he cannot *181recover,, any tiling, either upon the special contract-, or upon a quantum meruit, unless -ho avers -and proves an entire performance.

Action of assumpsit, tried before "Ms Honor, Judge Dick, at the Spring Term, 1855, of the Superior Court of Chatham.

The plaintiffs declared on a special contract to build a dam across Rocky river, and to cut a race, for $350. There was also a count for work and labor done. The contract, as above stated, was proved by one Benj. Williams, (son of one of the ■plaintiffs,) who also stated, that the plaintiffs cut a race, and laid the foundation of a dam; the race was to begin at the dam, and to run to -a dogwood, and to be four feet wide, and three feet deep.

The plaintiffs examined one John Gilmore, who proved that in July, 1851, he was called on by Oran Tysor, to take notice that he had now told the plaintiffs that he had lost by their not performing their contract within the time, and in the manner, agreed on; and if they did any more work, it must be at their own expense. Tysor also stated, that he had already paid as much as the work was worth; to which Brewer replied, that the receipts would show what had been paid. The plaintiffs liad quit the work some two months before, and this conversation took place just as .the plaintiffs were about resuming the work on the dam. The witness thought the dam was not more than half done.

It ivas also proved that the plaintiffs had cut a race, 400 yards long, between the points designated by witness Williams ; but it was not three feet deep in some places. It was also proved, that after plaintiffs had abandoned the work, the defendants did some work on the race, and then used it. It was further proved that the defendants erected a dam upon the foundation laid by the plaintiffs.

The defendant produced, and proved, a written agreement under seal, signed by plaintiffs and defendants, dated 18th December, 1850, in which the plaintiffs covenant to malte a race three feet deep and four feet wide, between certain pioints, within five months, at the sum of $250, and payments to be *182made at certain times, as the work progressed. Nothing was said in this bond about the dam. The defendants then proved, by one JBm'Jcer, that after this contract was entered into, he heard Jordan Tysor and one of the plaintiffs have a conversation, in which he left it to the option of the plaintiffs, either to finish the race the whole way, according to the within contract, or cut it part of the way, and raise the water into it by a dam 5^- ft. high, across Rocky river. Brewer then asked, what was to become of the bond or agreement they had previously entered into ; to which Tysor replied, let that stand; for that his word was as good as his bond. This witness also proved, that plaintiffs did not finish the. race in one or two places according to the contract; that the defendants altered a part of it, and then used the whole—-that which plaintiffs had made, and that which had been cut or altered by themselves. Defendants showed payments to the amount of about $11-0.

The witness Benjamin was again introduced, and stated, that he learned from the parties, that the written agreement was abandoned, and the agreement as above stated was substituted ; he heard one of the defendants say, that “ the old bond was now dead.” Defendants also proved, that one of the plaintiffs, about the middle of June, 1851, had a violent attack of disease which disabled him from work.

The defendants’ counsel upon this state of facts, asked his Honor to instruct the jury, that whether the written contract produced by the defendants, or the parol contract set up by plaintiffs in its lieu, were to govern ; yot, according to either, there was an entire service to be done, which was not done, and therefore, that the plaintiffs could not recover. 2. That the plaintiffs could not recover on the common counts, because the work had not been finished according to the contract, or finished at all.

3, If the jury were satisfied that the written contract -was set, aside by the parties, and the contract, as proved by B. Williams, was the true one, that then, the plaintiffs wore bound to perform the work in a reasonable time, and that an abandonment for two months would deprive them of the right *183to recover, either on the special contract, or on the common count.

The Court instructed the jury, if the written contract of 18th of December, liad not been surrendered by the consent of all the parties, the plaintiffs could not recover on the common count, because that contract had not been performed; that, supposing the first contract had been abandoned, and the contract as proven by B. Williams was the true one, then, the enquiry was, whether it had been performed by the plaintiffs ; and as it was admitted on all hands, that it had not been, then, they would enquire, whether they had had a reasonable time, within which to perform it, before they were desired by one of the defendants to quit; that if they had had, then, they were not entitled to recover on the contract.

The Court further instructed the jury, that it was proved that plaintiff's had cut a race for the defendants, 400 yards long, and done some.work to the dam; if they were satisfied that defendants had used the work done upon the race, and that done on the mill-dam, the plaintiffs would be entitled to recover the worth of it, and in this point of view, they would give the balance of that value, after deducting the payments made by the defendants. Defendants excepted.

Yerdict for plaintiffs. Judgment and appeal.

G. W. Haywood, Bryan and Graham, for plaintiffs.

Ilaughton, for defendants.

Nash, C. J.

The contract is a special one, executory in its character, and entire. It is admitted that the plaintiffs cannot recover on the special count; neither can they on the merits of this case on the quantum meruit. Die contract being an entire one, performance' .on the part of the plaintiffs, was a condition precedent, necessary to be averred in the declaration, and proved as averred, unless the other contracting parties have discharged them from the performance. If the plaintiffs do not aver performance, or a readiness to perform, they can recover, neither on the special contract, nor on the *184 quantum meruit. Winstead v. Reid, Busbee 76, and Cutter v. Powell, 6 Term Rep. 320 ; White v. Brown & Son, 2 Jones’ 403. The contract in this case was, that the race should be completed in five months after the date of the contract, of a certain length, depth and breadth. A portion only of the race was cut; and, after working three months, the plaintiffs abandoned the work, and it was completed by the defendants. Here, time was of the essence of the contract, and the plaintiffs failed to bring themselves within it. It is said the plaintiffs were sick most of the time, and are, therefore, to be excused, under the maxim, aetus Bei nemini faeit injuriam/ but the sickness of the plaintiffs did not render it impossible for them to execute their contract, ás they might and ought to have procured the work to be done.

It is again said, that the defendants received the work as it had been executed, and, therefore, they are bound under the 2nd count. The reply is, that the work which the plaintiffs had contracted to do, was necessary to the enjoyment, by the defendants, of the property to which it was appurtenant, to wit, the mill; that the defendants were obliged to use that portion of the race dug by the plaintiffs, in order to put their mill into operation; it could not be removed, nor could it be cut in any other place, to answer the purpose for which it ivas intended. If such was the fact, it -was incumbent on the plaintiffs to have shown it. Ve do not think that case comes within'the principle, that where there is a special contract for work to bo done, and it is done, but not in accordance with the contract, and is received by the person for whom it is executed, he shall pay, not on the special contract, but on a quantum meruit. Here, the work was but partially done, and the plaintiffs abandoned it before completion. As to the conversation between the parlies, at the time the demand of payment.was made, it can, in no sense, sustain the 2nd count in the declaration. There was, on the part of the defendants, an express denial of any liability ; for they asserted that they had paid the plaintiffs more than their work was worth. There was, in *185fact, no acceptance by tlie defendants, of the work -done. There was error in tlie charge.

Pee Cueiam.

'Tlie judgment is reversed, and a venire cie novo awarded.