(o) Code Civile, b. 3, tit. 8, art. 1793.

(p) Hort v. Norton, 1 McCord, 22; Wilmot v. Smith, 3 C. & P. 453, where it was ruled by Lord Tenterden that if A agrees to make an article of certain materials for a stipulated price, but puts in materials of a better kind, he is not at liberty on that account to charge more than the stipulated price, nor can he require the article to be returned, because the buyer will not pay an increased price on account of the better materials. For labor and service voluntarily done by one for another, without his privity or consent, however meritorious or beneficial it may be to him, as in saving his property from destruction by fire, itself affords no ground for an action. Bartholomew v. Jackson, 20 Johns. 28.

(q) In Lovelock v. King, 1 Mood. & R. 60, a very important and wholesome principle was laid down upon the subject of extra work, where there is a specific contract for certain work at a fixed price. The action was assumpsit on a carpenter's bill for alterations in a house of the defendant. Lord Tenterden, in summing up to the jury, observed : "That the case, although very common in its circumstances, involved a very important principle, and required their very serious consideration. In this case, as in most others of the kind, the work was originally undertaken on a contract for a fixed sum. A person intending to make alterations of this nature generally consults the person whom he intends to employ, and ascertains from him the expense of the undertaking; and it will very frequently depend on this estimate whether he proceeds or not. It is therefore a great hardship upon him if he is to lose the protection of this estimate unless he fully understands that such consequences will follow, and assents to them. In many cases he will be completely ignorant whether the particular alterations suggested will produce any increase of labor and expenditure; and I do not think that the mere fact of assenting to them ought to deprive him of the protection of this contract. Sometimes, indeed, the nature of the alterations will be such that he cannot fail to be aware that they must increase the expense, and cannot therefore suppose that they are to be done for the contract price. But where the departures from the original scheme are not of that character, I think the jury would do wisely in considering that a party does not abandon the security of person employed an estimate of the cost of such extra work, and then ordered it, the party employed might be bound by that estimate. And if the changes were such that the employer need not infer that they involved any additional expense, and he was not so informed, an express assent to them does not imply a promise to pay for them; because it is fair to suppose that he believed they were done under the contract, and assented to only on those terms. If the changes necessarily imply an increased price, and he expressly authorizes, or silently, but with full knowledge, assents to them, he is then bound to pay for them. The question may then arise, whether he is to pay for them according to the usual rate of charging for such work, with no reference to the contract, or whether he must pay only according to the rate of the contract. Some cases hold the former; but we think the better practice and the better reason in favor of the latter. (r)

If A agrees to make something for B, to meet the approval of B, or with any similar language, B may reject it ms contracts by consenting that such alterations shall be made, unless he is also informed, at the time of the consent, that the effect of the alteration will be to increase the expense of the work."

(r) In McCormick v. Connoly, 2 Bay, 401, it was said, that where a contract is made for any building, of whatever size or dimensions, it becomes a law to both parties, and they are both bound by it; and whatever additions or alterations are made in such building, they form a new contract, either express or implied, and must be paid for agreeably to such new contract. See Wright v. Wright, 1 Litt. 179. In Dubois v. Del. & Hud. Canal Co. 12 Wend. 344, a party entered into an agreement for the construction of a section of a canal, by which he was to receive a given price per cubic yard for ordinary excavation, and an increased sum per cubic yard for excavation of rock, but no compensation was provided for the excavation of hard pan. During the progress of the work a large quantity of the latter substance was excavated, a fair remuneration for which exceeded the highest price specified in the contract for any species of work, and the parties, whilst the section was constructing, treated the excavation of hard pan as not embraced in the contract ; and after its completion it was conceded by him for whom the work was done that the contractor was entitled to compensation for such work, beyond the price fixed for ordinary excavation; it was held, that the contractor was entitled to recover for such work, upon a quantum meruit, whatever he could show the work was worth. In Tebbetts v. Haskins, 16 Me. 288, where a contract in writing had been made between two persons, wherein one agreed to build a house, and the other to pay a certain sum therefor, and which had afterwards been abandoned by them, and a house had been built by one party to the written contract for the other party and two others; it was held, that it was not necessary to prove an express contract, but that one might be implied; and that the price for building the house was not to be ascertained from that fixed in the written contract. In De Boom v. Priestly, 1 Cal. 206, which was an action on a quantum meruit, the court held, that where there has been a special contract which is afterwards deviated from, the party cannot sue thereon, but must bring his action on an implied contract, and at the trial the damages must be graduated according to the terms of the original contract, so far as the work can be traced under it. And in Farmer v. Francis, 12 Ired. L. 282, it is held, that a party working after the time limited for the performance of the contract, is confined in his action to the rate of compensation fixed by the contract. The same doctrine for any objection which is made in good faith, and is not merely capricious. (s)1 is held, in Jones v. Woodbury, 11 B. Mon. 167. See also Clarke v. Mayor, 4 Comst. 338; Jones v. Jndd, 4 Comst. 412; Snow v. Ware, 13 Met. 42; White v. Oliver, 36 Me. 92.

(s) Andrews v. Belfield, 2 C. B. (N. S.) 779.

1 Thus where a suit of clothes was to be made to the "satisfaction" of A., he is not liable if they prove unsatisfactory. Brown v. Foster, 113 Mass. 136; or a portrait painted, Gibson v. Cranage, 39 Mich. 49; or a bust modelled, Zaleski v Clark, 44 Conn. 218.