
    James O’Connor vs. Calvin Varney.
    
      A. judgment for the defendant in an action for work done under a contract, upon the ground of imperfect performance of the work, is a bar to a subsequent action by him to recover damages for such nonperformance.
    Action of contract to recover damages for Varney’s failure to build certain additions to a house according to the terms of a written contract between the parties. Answer, a judgment recovered by O’Connor in an action brought by Varney against him on that contract to recover the price therein agreed to be paid for the work, in defence of which O’Connor relied on the same nonperformance by Varney, and in which an auditor to whom the case was referred, and upon whose report that judgment was rendered, found that Varney was not entitled to recover under the agreement, by reason of the work having been so imperfectly done that it would require a greater sum than the amount sued for to make it correspond with the contract.
    At the trial of this action Bigelow, J., upon the inspection of the auditor’s report and the record in the former action, ruled that that judgment was a bar, and ordered a verdict for the defendant, which was returned, and the plaintiff alleged exceptions.
    
      C. G. Thomas, for the plaintiff.
    
      J. W. Hubbard, for the defendant.
   Shaw, C. J.

The presiding judge rightly ruled that the former judgment was a bar to this action. A party against whom an action is brought on a contract has two modes of defending himself. He may allege specific breaches of the contract declared upon, and rely on them in defence. But if he intends to claim, by way .of damages for nonperformance of the contract, more than the amount for which he is sued, he must-not rely on the contract in defence, but must bring a cross action, and apply to the court to have the cases continued so that the executions may be set off. He cannot use the same defence, first as a shield, and then as a sword. Bennett v. Smith, 4 Gray, 50. Sargent v. Fitzpatrick, 4 Gray, 511. Sawyer v. Woodbury 7 Gray, 499.

Exceptions overruled.  