
    JOHN BEHA vs. ISAAC OTTENBERG.
    1. In the absence of fraud a mechanics’ lien may be enforced, although the work done and materials furnished have not been according to the contract.
    2. In such a case the measure of recovery is the contract price, less the amount required to put the work in that condition which the contract calls for.
    No. 9,192.
    Equity.
    Decided April 2, 1888.
    The Chief Justice and Justices Oox and James sitting.
    Bill in equity brought to enforce a mechanics’ lien against the premises of the defendant, for work done and material furnished under a written contract.
    Statement oe the Case.
    By the terms of the contract the work was to be done “in a good, substantial and workmanlike manner, and all of the materials were to be the best of their respective kinds.”
    The bill averred a compliance by the plaintiff, with his part of the written contract, and that, under a parol contract with the defendant, complainant had also furnished other materials and labor, and that he did extra work upon the premises, amounting to $180; that he had received $600 from the defendant on account thereof, leaving still unpaid $1,370.
    The defendant, answering, admitted the contract, but denied a compliance on the part of the complainant therewith, and averred that the materials used were poor and of a very inferior character; that the work done was done in an unskillful and improper manner, causing the building to settle and the walls to crack and become defective. The defendant also asked affirmative relief for the injury and damages he had sustained through the complainant’s nonperformance of his contract, and for the serious injury to the property caused by the unskillful manner in-which the work was done.
    It was admitted on the hearing that the evidence showed that the work was not performed strictly in accordance with the terms of the contract and that the materials were not all of the required quality. It was claimed, however, that the contract had been substantially complied with and that the expenditure of a comparatively small amount of money (about $200) would put the work in the condition provided for by the contract. On the other hand, it was contended by the defendant that the evidence showed the materials furnished to have been so inferior and the work so defectively executed as to largely depreciate the value of - the building. It was also claimed that the plaintiff had willfully and fraudulently failed to comply with the terms of his contract.
    The Court below dismissed the bill on the ground that the plaintiff, having failed to fully perform his contract, was not entitled to the lien given by the statute.
    Mr. Leon Tobriner, for plaintiff:
    Plaintiff is entitled tó a decree for at least $1,115.50 that being, the difference between the contract price and the amount claimed to be necessary to alter the work to conform to the specifications. 2 Smith, Lead. Cas., 8th ed., 21; Dermott vs. Jones, 2 Wall., 1; Burns vs. Whittlesy, 2 Mac Arthur, 189.
    Messrs. Edwards & Barnard, for defendant:
    The contract is not under seal, but is an entirety.
    Proof of full performance by the complainant is, therefore, ■a condition precedent to his right to recovery. 2 Pars. Cont., pp. 658-675; Add. Cont, 925; Cutter vs. Powell, 6 Term Rep., 320; Dermott vs. Jones, 2 Wall., 1; Jones vs. U. S., 96 U. S., 24, and cases cited.
    It is the province of courts to enforce contracts — not to make or modify them. When there is neither fraud, accident nor mistake the exercising of dispensing power is not a judicial function. The Harriman, 9 Wall., 161.
    The complainant concedes it to be necessary to all the work in a number of particulars to conform to the contract, for he says he “is entitled to a decree for at least $1,115.50, the difference between the contract price and the amount alleged to be necessary to alter the work to conform to the specifications.”
    This being so, the complainant is “out of court.” Nonperformance in part being admitted, it is unnecessary even to read the defendant’s proofs to show it. The complainant must stand or fall by his contract. No case for a quantum meruit is made by the bill. The complainant is entitled to recover the full price agreed to be paid, or nothing.
    “Whenever compensation or an equivalent is claimed by a party in return for the performance of conditions for which such compensation or equivalent has been stipulated, the person so claiming is bound to show a fulfillment in good faith of these conditions; and the party against whom the claim shall be made shall be permitted to repel it by proof of an entire failure to perform, or of an imperfect or unfaithful performance, or by proof of injurious conse* quences resulting from either of these delinquencies, and shall not be driven exclusively to his cross action.” Van Buren vs. Diggs, 11 How., 470.
    The affirmative relief asked by the defendant should be granted, a formal cross-bill not being necessary.
   Mr.. Chief Justice Bingham

delivered the opinion of the Court:

We think the statute gives the lien as security for the payment of whatever the party may be entitled to recover on his contract. If the failure to fully perform his contract would disentitle him to recover anything at all, of course there would he no lien, and the bill should be dismissed. Upon that point the Supreme Court of ■ the United States has held, and such must be the rule with us, that where there appears to have been a bona fide intention to comply with the contract, but for some reason or other not involving a fraudulent purpose there has been a partial failure, there may be a recovery of the contract price, less the amount required to put the work in that condition which the contract calls for.

Of course, if there has been a fraudulent disregard of the contract, nothing whatever could be recovered in any court. The question of just how much the plaintiff should recover in this case is one, however, which, we think, ought to be decided at law by a jury. We shall, therefore, send this case back, with direction that issues be made up to determine -what, if anything, the plaintiff is entitled to recover. The issues should be made broad enough to include every question that might be made upon suit originally brought at law to recover on the contract; and whatever amount, if any, the jury shall find for the plaintiff, the Court sitting in equity will enforce payment of by a decree against the property.

Case remanded accordingly.  