This section contains the nature of the case and procedural background.

Stewart (P) contracted to do excavating for Newbury (D). Nothing was said in writing about the time or manner of payment. P claimed that D orally promised to pay in the 'usual manner'; 85% of payment for work completed each 30 days or at the end of the month, with 15% being retained until completion of the work. D denied making this payment promise. Work began in July and ended in September when D refused to pay the first bill, P stopped work. Letters and phone calls did not resolve the problems. P claims that D refused to permit him to perform the rest of his contract, insisting that the work already done was not in accordance with the specifications. D claimed that P voluntarily abandoned the work after their refusal to pay his bill. P sued for the amounts due. The trial judge instructed the jury that if no agreement for payment had been made, P could expect payment at reasonable intervals and that if it was not understood that payments were due monthly and if payments were not made, P could abandon work. Judgment was given to P and D appealed.

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