Widman v. Gay

The principal error assigned consists in the fact that the circuit court construed the contract as entire, and denied recovery for the earth actually taken in case the jury found that plaintiff prevented removal of the whole without breach on defendant’s part. An entire contract is ■one where, in the intention of the parties, full and complete performance on the one side constitutes the consideration for performance on the other. It is not necessary that the price named shall be a lump sum. It may be measured *279by quantity or by units. Boutin v. Lindsley, 84 Wis. 644; Warehouse & Builders S. Co. v. Galvin, 96 Wis. 523. Nor is it essential that, by the terms of the contract, actual payment is to be postponed until after full completion, if earlier payments are merely advancements upon the whole price, and not ratable payments for performance of several and distinct parts, as in Goodwin v. Merrill, 13 Wis. 658. It suffices that full performance is the consideration of the price to be paid, and earlier actual payments on account of the full price are not necessarily inconsistent with entirety. Cohn v. Blumer, 88 Wis. 622; Green v. Hanson, 89 Wis. 597; Mount v. Lyon, 49 N. Y. 552. We are constrained to the conclusion that this contract was entire. In terms, it relates to all the earth above a specified level. The amount was .not great, and ascertainment of amount taken at various intervals would have been inconvenient and burdensome. There is no intimation in the contract that any part or share was to be paid for before the whole had been taken, and part of the price, viz. the leveling up of the lot and distribution of black earth over the surface, was incapable of performance until after complete delivery. All these things indicate the intention and understanding of the parties to •contract for a single and completed piece of work. The payment of $70, much urged by plaintiff in error, is in no wise inconsistent with such understanding. It is not shown to have been at all apportioned to the earth removed from time to time, or to have been intended otherwise than as an advance generally upon the gross sum' ascertainable and payable only after full completion. *

The other errors assigned relate wholly to the other elements of damage to which plaintiff might be entitled upon defendant’s breach of the contract. Any such breach having been negatived by the verdict, and no such damages, therefore, being recoverable, any errors with reference thereto .are immaterial.

By the Court.— Judgment affirmed.