Phœnix Tempe Stone Co. v. De Waard

(after stating the facts as above). The defendant contends that the plaintiffs’ complaint fails to state a eanáe of action, that the demurrer thereto should have been sustained, and it argues that, although the complaint alleges certain breaches of the subcontract in connection with the extra work claimed to have been performed by the plaintiffs, the facts thereafter pleaded show that the plaintiffs waived any prior breach on the part of the defendant. It is true that the complaint indicates that after the alleged breaches negotiations were continued between the parties with a view to complete performance, but it also shows that the defendant, after refusing to pay for the extra work, notified the plain *759 tiffs that it was going to take over and perform the'contract itself. The case stated is not, therefore, one of a subcontractor abandoning the work on the failure of the contractor to pay an installment due under the contract. The facts pleaded bring the case within the rule that, where an' act of the defendant renders complete performance of the contract impossible, the plaintiff may treat the act as a discharge from further performance, and may claim compensation for what…