Litle v. Cowen Co.

We are of the opinion that the plaintiff performed his contract, except as performance was prevented by the failure or refusal of the defendant to furnish the matter for some of the drawings, and hence was entitled to recover on his second cause of action. ' The contract under which such recovery was had, however, provided that on payment for the drawings covered by that contract he would release the claim for the drawings prepared for advertisements of Climax tobacco, which was the subject of his first cause of action. He should not be allowed, therefore, to recover full payment for his work under the second cause of action, and also retain the benefit of the claim that he had agreed to release.

The judgment will therefore be modified, by reducing the same to the sum of $280, and appropriate costs in the court below, and, as modified, affirmed, without costs of this appeal.