The complaint alleged the proposition, its acceptance, and the construction of a gas holder and tank in conformity with the speci fications laid down by the defendant, "all of which was done by the plaintiffs at the special instance and request of the defendant, and was completed and delivered by the plaintiffs to defendant, and accepted by the defendant." The complaint further alleged "that" the work, labor, and service performed by the plaintiffs in and about the construction of the said gas tank were and are of the reasonable value of $149,000;" and further alleged an unpaid indebtedness of the amount which has been stated. The defendant, in its answer, admitted the construction of a gas holder and tank, but denied that it complied with the specifications, or that it was completed and accepted within the time required by the contract, or except subject to the penalties imposed for delay, or that it was worth $149,000, or that the sum of $52,293.06 was due. The answer also contained a counterclaim for $28,800, the amount of penalties incurred by the plaintiff as fixed by the contract for delay, and alleged that by reason of the plaintiffs' défault its actual damages were the amount of $30,000, or thereabouts.

To

Under the issues as thus framed the plaintiffs offered evidence that the foundation which the defendant was to have ready by June 15th was not completed until August 5th; that, therefore, they were not able to complete the work by November 15th, and that it was compelled to be finished in the winter, and was subjected to consequent delays, but was finished in a reasonable time. the evidence showing excuses for nonperformance of the agreement to complete the work by November 15th the defendant seasonably excepted. The testimony of the defendant was that its delay in completing the foundation was caused by the plaintiffs, and that it was substantially completed on June 15th. It was finally conceded that the plaintiffs substantially conformed to the specifications, that there was no claim for damages predicated upon defects in the character of the work, and that at some time the structure was accepted. The court charged the jury that the plaintiffs were entitled to the balance which they claimed, unless the defendant was entitled to recoup and reduce the amount of the plaintiffs' recovery because of the breaking of contract on their part to complete the structure by November 15th; and further charged that, if the defendant had performed the condition upon its part by having the foundation for this structure ready-ready within the meaning of the contract-on the 15th of June, then the defendants were entitled to recover by way of recoupment against the plaintiffs' claim at the rate of $100 per day for the number of days' delay which elapsed after the 15th day of November until the structure was really substantially completed; and submitted to the jury the question whether the foundation for the structure was ready on the 15th day of June, within the meaning of the contract, and that it was ready within such meaning if the defendant, having done everything within its own control towards completion, had been hindered by the default of the plaintiffs from entire completion. The court further charged that if the structure was not ready, through the

default of the defendants, the plaintiffs were entitled to the whole contract price; but, if the jury found that the defendant performed its obligation in having the foundation ready, within the spirit of the contract, by the 15th day of June, then they were to determine how many days ensued after the 15th day of November of delay in the completion of the work, and were to allow the defendant by way of recoupment $100 for every day. The court further charged that the defendant could be entitled to recover damages for unreasonable delay in completing the structure if damages had been shown, even though it appeared that the foundation was not ready on the 15th of June; but that, when the defendant relied upon the recovery of the $100 per day, then it must appear that the foundation was ready on June 15th. The defendant excepted to the charge that the condition in the contract in regard to the foundation was a condition precedent, and further excepted to the statement that no actual damage by reason of the nonfulfillment of the contract was proved, and called the attention of the judge to his remark during the progress of the trial that he should probably rule that the provision for $100 per day was to be treated as liquidated damages, and to his reply in the affirmative to the question of the defendant's counsel whether the court would rule that actual damages need not be proved. The jury returned a verdict for the full amount of the plaintiffs' claim.

The propositions upon which the exceptions of the plaintiff in error are founded are threefold. The first and second will be considered together: First, that no evidence in excuse for nonperformance of the agreement to complete the work on November 15th was admissible, because the complaint averred performance, and under such an averment evidence in excuse of nonperformance was not admissible. Second, that the provision of the contract which called upon the gas company to complete the foundation by June 15th was not an imperative condition precedent, and that the gas company was entitled to its liquidated damages for delay after Novem

ber 15th.

The first objection proceeds from a misconception of the character of the complaint, which was in general assumpsit for the reasonable value of work which the defendant had accepted, and was framed in accordance with the rule of pleading stated in Dermott v. Jones, 2 Wall. 1, as follows:

"Where he [the plaintiff] has in good faith fulfilled, but not in the manner or not within the time prescribed by, the contract, and the other party has sanctioned or accepted the work, he may recover upon the common counts in indebitatus assumpsit. He must produce the contract upon the trial, and it will be applied as far as it can be traced; but if, by the fault of the defendant, the cost of the work or materials has been increased, in so far the jury will be warranted in departing from the contract prices. In such cases the defendant is entitled to recoup for the damages he may have sustained by the plaintiff's deviations from the contract, not induced by himself, both as to the manner and time of the performance."

The invalidity of the second exception, which relates to the construction of the contract, and to the obligations of the respective parties in case the contractors' promise to complete the work by

November 15th rested upon the completion of the foundation by June 15th, will be manifest by reference to authoritative decisions of comparatively recent date. The two promises were not concurrent, for the acts to be performed were not simultaneous. 2 Pars. Cont. c. 3, p. 189. The promise to complete on November 15th, and to pay $100 for each day's default thereafter, expressly hinged upon the gas company's completion of its part of the work by June 15th. When the condition upon which the promise depended was unperformed through the default of the gas company, the promise to complete by a certain day was no longer obligatory; but, if the contractors entered upon the work, they were under an obligation to finish within a reasonable time. The gas company had, by its default, waived or abandoned the right to call upon the contractors for strict performance as to time, who, if they entered forthwith upon the work, had the right to a reasonable time for performance. Dannat v. Fuller, 120 N. Y. 554, 24 N. E. 815; Mansfield v. Railroad Co., 102 N. Y. 205, 6 N. E. 386; Dermott v. Jones, 23 How. 220. The evidence on the part of the defendants in error, that, having been thrown over into the winter in consequence of the gas company's delay, they were delayed from prompt completion of the work by the inclemency of the weather, tended to show that they were complying with their duty as to time.

Third. The defendant says that if it was not entitled to liquidated damages it was entitled to prove that it had sustained actual damages for failure to furnish the tank within the limited time, and that it was deprived of an opportunity to do so by the interlocutory ruling of the court. It had a right to prove that it had sustained actual damages by unreasonable delay on the part of the contractors, and, if it was apparent that it had desired to offer such proof, but had refrained from the attempt by the ruling of the court, fairness would require that the opportunity to make such presentation should be afforded. But the record shows that it was in the opinion of the defendant absolutely impracticable for any person to ascertain what damages were suffered from the delay, and consequently it received no injury by reason of the quoted statement which was made by the court during the progress of the trial.

There is no error in the record, and the judgment of the circuit court is affirmed.

MUNDY et al. v. STEVENS.

(Circuit Court of Appeals, Third Circuit. January 23, 1894.)

No. 15.

1. PERFORMANCE OF CONTRACT-QUESTION FOR JURY.

A contract for the excavation of a harbor was sublet (February 2, 1892) under an agreement that the work would be performed "within the time fixed by said contract and the extensions thereof, granted or to be granted," and the further stipulation that the original contractor should have the right to proceed with the completion of the work if there should be a failure under the agreement to perform the contract so as to endanger a forfeiture. The time fixed by the contract for the performance of the work was extended from December 31, 1891, to June 30, 1892, and there

after to July 31, 1892, and, finally, to December 31, 1892. Pending this final extension (August 16, 1892), the original contractor resumed possession of the work. Held, in an action on a bond given by the original contractor to secure payments under the agreement, that it could not be said, as matter of law, that the danger of forfeiture was so great as to justify resumption of the work by the original contractor.

2. ALTERATION OF CONTRACT-DISCHARGE OF SURETIES.

A contract for the excavation of a harbor having been sublet, it was agreed between the parties that the contractor should pay over all moneys received therefor from the government, and that the subcontractor should pay in return a stipulated sum in monthly installments for each yard excavated during the month, with the proviso that, if at this rate any installment fell below $9,000, the deficiency should be deducted from the next payment received from the government. Held, where a bond had been given by the contractor, that a subsequent reduction in the amount of the installments to 21⁄2 cents per yard, and the elimination of the provision in relation to minimum payments released a surety who had no knowledge of the change in the agreement.

3. ACTION AGAINST SURETIES-PLEADING AND PROOF.

In an action against sureties on a bond given to secure performance of a contract, the defense of material alterations in the contract, operating to release the sureties, may be made (Pa. Proc. Act, May 25, 1887) under the plea of the general issue, and without previous notice.

A surety who defends on the ground of an alteration in the contract operating to release him has not the burden of showing that such alteration was without his consent, when the plaintiff himself sets out the alteration in his statement of claim, and introduces it in evidence.

5. DISCHARGE OF SURETY-ALTERATION OF CONTRACT.

A surety who, as attorney in fact for one of the principals, executes a supplementary contract altering the original to his own prejudice as surety, will be presumed to consent to the alteration, and is therefore not discharged.

6. SAME.

When an alteration of a contract to the prejudice of the sureties is assented to by one of them, but not by the other, the one remains bound, but the other is discharged.

7. SAME-PRACTICE ON APPEAL.

In an action or a bond, one of the sureties claimed a release by reason of an alteration, and presented the question of praying an instruction in his favor. The court reserved the question, and a verdict was returned against all the defendants. The surety then moved for judgment in his favor, non obstante, but the motion was dismissed, and judgment entered against the defendants generally. On writ of error, the appellate court decided in the surety's favor. Held, that the proper practice was to reverse the judgment, with directions to allow plaintiff to enter a nolle prosequi against the surety, and then to enter judgment on the verdict against the other defendants.

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

This was an action upon a bond given to secure the performance of a contract, and was brought by C. Amory Stevens against James A. Mundy, Joseph Busch, and William B. Johns, doing business as James A. Mundy & Co., as principals, and John M. Sharp and Clarence Busch as sureties. There was a verdict and judgment for plaintiff against all the defendants, and they bring the case here

on error.

The material facts were as follows: James A. Mundy & Co. had contracted with the United States to furnish the necessary plant and do the

work required for the improvement of the harbor of Philadelphia, and they were bound to remove 1,075,000 cubic yards of earth by December 31, 1891. At that date they had made but little progress, and they then secured an extension of time until June 30, 1892. In February, 1892, they sublet the work to plaintiff under the following contract:

"Agreement, made this second day of February, 1892, between C. Amory Stevens, party of the first part, and James A. Mundy & Company, consisting of James A. Mundy, Joseph Busch, and William B. Johns, parties of the second part.

"(1) The party of the first part agrees to furnish the necessary plant and do all the work required for the improvement of the harbor between Philadelphia and Camden, as described in the contract between the parties of the second part and Major C. W. Raymond, U. S. army, under date of April 23, 1891.

(2) The party of the first part agrees to assume all the duties and obligations imposed by said contract upon the firm of James A. Mundy & Company, and to keep and perform all the undertakings, agreements, and covenants which said firm undertook to keep and perform under said contract.

"(3) The party of the first part further agrees to perform the work mentioned in said contract, and the modifications thereof made or to be made, in the manner and within the time fixed by said contract and the extensions thereof, granted or to be granted, and to save said firm of James A. Mundy & Company, and each of them, harmless from all loss or damage which might ensue to them by reason of any failure faithfully to perform said contract, resulting from the wrongful act or omission of said party of the first part or his representatives.

(4) The parties of the second part agree to pay to the party of the first part for all work done by him hereunder, and as soon as the same is received from the war department by said parties of the second part, the same amount and prices for the work that the parties of the second part shall receive under their above-mentioned contract with the war department, to wit: First. Ten and seven-eighths (10%) cents per cubic yard, measured in the scows, for all material excavated, removed, and deposited at the place provided by the said James A. Mundy & Company, and approved by the engineer officer in charge for the entire improvement of the Philadelphia harbor approved by congress. Second. One dollar and ninety cents ($1.90) per lineal foot for piles and timber roofing or revetment removed. Third. Nine and a half (91⁄2) cents per cubic yard, measured upon the scows, for all dredged material deposited and spread upon League island, this price to be in addition to the price per cubic yard paid under item one.

"(5) The parties of the second part will properly forward all applications for payments as soon as the same may be received from the party of the first part, and will make such reasonable requests and applications concerning the terms of said contract or modifications thereof as the party of the first part may suggest.

"(6) The party of the first part, in consideration of the premises, hereby agrees to pay to the parties of the second part the sum of one hundred and seventy-nine thousand dollars ($179,000) as follows: The parties of the second part shall be paid monthly, until the payment of all money becoming due to them under the provisions of this section, the sum of three cents per yard for all material dredged during the month, and if subsequent to June 30, 1892, any such monthly payment shall not amount to at least nine thousand dollars ($9,000), the parties of the second part may deduct from the next payment falling due the party of the first part thereafter, under the provisions of the fourth section hereof, such sum as shall bring the payment for such preceding month up to the said sum of $9,000. The unpaid part of such $9,000 shall draw interest at six (6) per cent. from the date on which it should have been paid until paid or deducted as aforesaid; but no action shall be brought by the parties of the second part against the party of the first part for any such deficit below $9,000 in a monthly payment, unless said party of the first part shall fail to perform the work under this contract, and the parties of the second part shall be thereby compelled to complete the work. Said sum of $179,000 shall be paid within eighteen (18) months from this date; $150,000 thereof shall, if practicable, be paid within one year from