Benson

This is an action to recover damages for the breach of a contract entered into between plaintiffs and defendant whereby plaintiffs engaged to construct a certain highway for defendant. Judgment went for the latter and plaintiffs appeal. The contract between the parties provided for the building of nearly eleven miles of road. Appellants had entered upon the performance of the work, had fully completed more than four miles of the road and had done the preliminary work of clearing the land throughout the remainder of the distance, when the uncompleted portion of the highway was "eliminated" from the contract. Notice of this elimination was given orally to appellant, according to some of the testimony, by the engineer and certain members of the highway commission of respondent and appellants were by the engineer, according to his own testimony, ordered to "shut down" the work under the *Page 138 contract. Later, on December 6, 1917, the clerk of the board of supervisors of respondent wrote appellants that on that day the board had by resolution "eliminated that portion of the work provided for by contract and specifications" which had not been completed, the portion thus "eliminated"…

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 14, 1922. All the Justices present concurred. Richards, J., pro tem., and Myers, J., pro tem., were acting. *Page 143