Thomas Taylor, Respondent, v. Alexander Philip, Appellant

Thomas Taylor, Respondent, v. Alexander Philip, Appellant. (Argued June 17, 1878 ; decided November 12, 1878.) This was an actio u upon a contract. Defendant having been invited by the building committee of a religious society to make tenders for doing the stonecutters’ work upon a church, plaintiff sent to him a letter stating that he understood such an invitation had been extended, and proposing to furnish detailed bills of quantities for three-quarters of one per cent on the amount of the tender, to be paid only by the party who might get the work. Defendant accepted the offer, the bills were furnished ; defendant made a tender, which was rejected by the committee, who accepted the offer of another. Defendant and others thereafter took a sub-contract from the successful bidder for this and other work. Held, that plaintiff was not entitled to recover ; that although defendant had the benefit of the use of the bills of quantities so furnished, yet that this did not answer the proviso of the contract upon wdiich alone he was under express legal obligation to pay ; that when defendant’s tender was rejected and that of a third person accepted, the contract was abandoned, and it was not revived because of the sub-contract. Payson Merrill for appellant. A. Bell Malcomson, jr. for respondent. [MAJORITY — Folger, J.,] Folger, J., reads for reversal and new trial. All concur, except Church, Ck. J. and Miller, J. absent at argument. Judgment reversed.