Where a contract for the performance of work is divided into three separate and distinct parts, there is no reason why the plaintiff should not recover for work done on the first two parts according- to the contract, though the third part was not so finished.
This was an action of assumpsit, upon a special agreement, tried before Marly, J., at the last Fall Term of Chatham Superior Court.
/ Upon the trial of the case at this term, it appeared that there had been a written contract, or articles of agreement, between the parties, in relation to the digging of a canal out of Rocky River to the spot where the defendants were constructing a mill, the terms of which were not stated, as it was abrogated and abandoned by the parties at the instance of the defendants, and a new oral agreement was made in the place of it. By this new agreement, which is the one declared on, the plaintiffs undertook to dig a portion of the canal before undertaken, and also to construct a dam across the river. It was agreed that there should be three divisions of the work: First, the dam. Secondly, half the canal from the dam down to a certain point. Thirdly, the remaining half down to the mill. The canal was to be dug 4 feet wide, and 3 feet deep. The canal was to be finished by the last day of May, but as to the time of finishing the dam, or whether there was any time stipulated, the testimony was conflicting. The agreement *174(contained a provision that when any one of the three divisions of the work should be finished, the defendants were to pay therefor, as follows: for the first section, $80, for the second section, $80, and for the third, $90. It appeared from the evidence that the 2nd and 3rd divisions of the work were finished within the time and according to specifications agreed \ on ; but the dam was not finished by the first of June, and the defendants took the work out of plaintiffs’ hands.
The Court instructed the jury, upon this state of the facts, that they might render a verdict for the plaintiffs, for the divisions of the work executed according to the terms of the contract, and if there were any division not so executed, (ex gr. not finished in the time agreed,) the plaintiffs could not , recover any thing for that. The defendants excepted.
The jury rendered a verdict for the plaintiffs for the two finished sections of the work. Judgment and appeal by the defendants.
Phillips, Howze and J. II. Bryan, for the plaintiffs.
No counsel appeared for the defendants in this Court.
Pearson, J.
This case as it is now presented, differs wholly from that of Brewer v. Tysor, 3 Jones’ Rep. 180. There the contract was entire ; here it is divided into three separate and distinct parts. There can be no reason why the plaintiffs should not recover for the work done on the two parts which were finished according to the contract. There is no error.
Per Curiam, Judgment affirmed.