HUTCHISON vs. CULLUM, 23 Ala. 622

CHILTON, C. J. The court below ruled, that there could be no recovery under the quantum meruit count, for the work and labor done and materials furnished by the plaintiff in erecting a house for the defendant, as to that portion of the work &c. for which provision is made in the special contract, notwithstanding the proof showed that the special agreement had been so varied as to considerably enlarge the building, requiring the timbers for a portion of it to be spliced, and increasing the expense of the work and materials to between three and five hundred dollars. In this the judge mistook the law.

It is obvious, that if Hutchison, after the modification or change of the agreement, had gone on to complete the job according' to the contract as it originally stood, and had sued upon it to recover for the work, he could not have maintained his action; for he would have built a different edifice from that specified in his subsequent undertaking. The fact that such recovery could not property bo had under tho agreement, shows that he is not bound to declare specially upon it.

A slight or immaterial alteration in the structure of the building, or the addition of extra work not materially varying tho terms of tho agreement, we are prepared to concede, would leave the original contract as it stood before the supposed change.

But where there are such alterations or additions as materially affect tho contract as it originally stood, requiring the house-joiner to cast away much of his lumber procured for tho completion of tho first contract, or to incur a considerable additional expense in splicing the timbers, so as to erect the building according as the parties had stipulated for its enlargement by tho modified agreement, it is very clear, we think, that the first agreement is waived by the subsequent one, and if the latter specifies no amount which the workman is to receive, ho should be allowed to recover for the work and materials as much as they were reasonably worth.— The special agreement is, however, property receivable in evidence, as showing what the parties had agreed upon as reasonable for that portion of the work embraced in the first contract.

This view, wc think, is in harmony with our previous decisions in McVoy v. Wheeler et al., 6 Por. 201, and Aikin v. Bloodgood, 12 Ala. 221. That the enlargement of tho house materially affected the original agreement clearly appears from the proof in the cause. According to the deposition of Mr. Quigly, it required the upper tier of joists should be spliced, and supported by posts.— These joists were long enough, had the parties proceeded under the first contract. Besides, it required two additional doors, one window-leading out of the second story, and three windows in the third story.

In fact, the building was to be made wider by an extension eastward to tho distance of five feet two inches, requiring, as Mr. Dougherty stated, over three hundred dollars, and according to Mr. Lamb, four or five hundred dollars additional expense to the carpenter. There must have been a corresponding cha-nge in tho roof and the quantity of covering.

These alterations of tho original plan may have required a' much longer time for the completion of the building, than was provided in the contract as it at first stood 5 and assuming this to bo true, let us suppose, as a further test of the correctness of our view, that Hutchison had failed to complete the work by the first of October, 1850, and that Galium hud sued him to recover the penalty “fifty dollars for each and every day thereaf-' ter the work remained unfinished.35' Would it admit of any doubt, that Hutchison might well plead the subsequent change of the contranct, making alterations in the building, and requiring a material increase of work and a longer time for its performance so as to completo it?

Such plea would ho clearly good. The change of the contract, then, affects not only the quantity of work to be performed, and the amount of materials to be furnished, as well as an alteration in tho structure, but also in the timo for tho completion of tho edifice j and thus changed, it is clear the workman was cot bound, to sue on the contract, but might resort to a quaniwa meruit. Let tire judgment be reversed, and the cause remanded.