Frederick K. Scofield et al., Appellants, v. John McGregor, Respondent

Frederick K. Scofield et al., Appellants, v. John McGregor, Respondent. (Argued December 7,1875; decided December 14, 1875.) This was an action to recover damages for an alleged breach of a contract by defendant to furnish the materials and do the carpenter work upon a school-house being erected for plaintiffs. Defendant entered upon the performance of the contract, and after he had done the work required to earn the first installment of the contract-price, which was paid to him, in consequence of a dispute between him and plaintiffs, he refused to go on with the contract and discontinued the work. A few days thereafter plaintiffs presented to defendant a paper agreeing to a submission of their mutual claims arising on the contract to an arbitrator named, and agreed with defendant that the execution of the paper by him should relieve him from any further performance of the contract. Defendant and plaintiffs thereupon signed 'the paper, and plaintiffs went on and completed the work at a cost larger than the contract-price. Held, that after defendant’s refusal to perform, two courses were open to plaintiffs, either to act upon the refusal, accept the abandonment, and refuse any further performance on their part, holding defendant responsible for the damages caused by his breach, or to refuse to accept the abandonment and hold defendant to the performance of his contract, in which case defendant could have resumed performance at any time before the time for performance had expired ; that at the time of the submission plaintiffs had not acted upon the refusal and accepted the abandonment, and defendant had ample time to perform, and the parties having then, while the case was in this condition, by mutual consent waived performance and abandoned the contract, neither party could sue the other for any future breach. Mr. Anthony for the appellants. H. H. Hustes for the respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Judgment affirmed.