Dabney v. Natchez, Jackson & Columbus Railroad , 2 Miss. Dec. 133 ( 1881 )

Opinion.

Per curiam:

The first contractors surrendered all rights and claims under their contract “except the right of compensation according to the terms of its terms (i. e., according to the terms of said contract) for work and material already done and furnished subject to the reservation of 15 per cent thereof until construction of the, road to Fayette.” Evidently, to ascertain the meaning of this reservation, we must look to the original contract, and, looking there, we find that in order to entitle the contractors to this 15 per centum the road was to be completed by the 1st of November. Plaintiffs therefore cannot claim under that contract without averring a completion by that time. The new contract with the new contractor'required the road to be completed to Fayette by the 1st of January, and unless this was done there was no right in any one to the 15 per centum of reservation, and no recovery of it can be had without an averment of such completion.

The new contract was simply a substitution of contractors and an extension of time by consent of all parties; no demand was to be made for the 15 per centum reservation by either set of contractors unless the new contract was faithfully carried out within the time specified in the extension.

Affirmed.