
    Dexter Gleason vs. John Smith & others.
    A. contracted under seal, to huild a dam, according to the specifications and in the manner set forth in the contract, the last instalment of the price to be paid when the dam should be completed according to the contract. A., acting in good faith, and with an honest intention of fulfilling the contract, built a dam, though not according to the contract; it was held that he might maintain an action for work done and materials furnished, and that the jury should deduct from the contract price, so much as the dam built was worth less than the dam contracted for.
    This was an action of debt, brought, in the court of common pleas, upon a sealed instrument, being a contract entered into by the plaintiff with the defendants to build for them a dam, according to the specifications and in the manner in the contract contained. There was also a second count in the writ, upon a quantum meruit and quantum valebant, for the work done and materials furnished in building the dam. The action was brought to recover the last instalment under the contract, and also for the amount of certain extra labor claimed to have been performed.
    There was evidence that the plaintiff, although he built a dam, had failed to fulfil the contract, and the plaintiff contended that, though the jury should find that he had not fulfilled his contract, yet if he had built a dam, and acted in good faith, and with an honest intention of fulfilling the contract, though he had failed so to do, he could nevertheless recover, under his second count, what the jury should find the labor and materials to be worth to the defendants. The defendants contended, and requested the judge so to instruct the jury, that by the express stipulations of the contract, the last instalment was to be withheld until the dam was built according to the contract, and that, therefore, if the jury should find that the dam had not Deen completed according to the contract, the plaintiff could not recover any part of such instalment under either count in this action. But the presiding judge, Byington, J., declined so to instruct the jury, and instructed them that, notwithstanding the stipulations of the contract, the plaintiff, though he had not fulfilled the same, could nevertheless recover, under the second count in his writ, for the work and materials done and furnished, if he acted in good faith, and intended, though failing, to fulfil the same, so much as his work and labor, and materials were worth to the defendants ; and they should deduct from the contract price so much as the dam built by him was worth less than the dam contracted for. The jury having found a verdict for the plaintiff, the defendants alleged exceptions.
    
      H. L. Dawes, for the.defendants.
    I. The fulfilment of the contract was a condition precedent to the payment of any portion of the last instalment. Milner v. Field, 1 Eng. Law & Eq. R. 531; Chitty on Con. 497, 498; Sinclair v. Bowles, 9 B. & C. 92; Stark v. Packer, 2 Pick. 267 ; Moses v. Stevens, 2 Pick. 332.
    2. The jury should have been instructed that they must be satisfied from the whole evidence, that the defendants had acquiesced in deviations from the contract, before the plaintiff could recover on a quantum meruit. 2 Smith’s Leading Cases, note to Gutter v. Powell; Olmstead v. Beale, 19 Pick. 528; Snow v. Ware, 13 Met. 42.
    3. The jury should have been instructed that, if no assent of the defendants to the deviations from the contract were found, and the work was affixed to the realty so that it could not be removed, but must be enjoyed by the defendants, then the rule of damage should be, the contract price, minus what it would cost to make the work conform to the contract Chitty on Con. 497; Thornton v. Place, 1 M. & Rob. 218 S, G. 2 Smith’s Lead. Cas. 17.
    
      S. W. Bowermam, for the plaintiff.
   Dewey, J.

This ease does not differ from the cases that have been so frequently before the court, in which it has been' held, that a strict literal fulfilment of a building contract was not a condition precedent to a recovery upon the contract, In terms, the last payment was to be made when the work was completed, but that does not take the case out of the rule, and where the party has acted in good faith, and has unintentionally failed, in some particulars, to perform the contract, he may yet recover for his services, deducting therefrom such sums as will fully indemnify the other party for any deficiency in the work. The only question in this case, as it seems to us, is, as to the proper rule for assessing damages.

It is not that the jury are to give what the building is worth to the owner, for that would be to disregard the contract. The rule, as stated in our earliest reported case on this subject, was in terms like those stated by the presiding judge upon the trial of this case. The first position stated by the court, that the plaintiff was to recover of the defendants so much as the work and labor were worth to the defendants, would have been erroneous if standing alone, but it was qualified by the mode in which the jury were directed to arrive at that result, namely, by deducting from the contract price so much as the dam built by him was worth less than the dam contracted for.

The rule for making the deduction from the contract price, for the deficiency in the work, has been sometimes stated in another form, that the jury would take, as the basis of the calculation, the contract price, and deduct from that sum such an amount as would be required to be paid to complete the work according to the contract, as was done in Snow v. Ware, 13 Met. 42, and Smith v. First Congregational Meeting House in Lowell, 8 Pick. 178.

Probably the result would be much the same under either of these rules. In many cases the latter rule would not be adapted to the case, as where the building was wholly finished, but there was some small departure from the contract in some of the details; there the rule must be fo deduct so much from the contract price as the work was worth less to the owner.

On the other hand, where the omission was in a failure to complete the work, and such defect was capable of being supplied by additional expenditure. of labor or materials, the proper rule would seem to be, to deduct such sum as would cover all future expenses necessary to complete the work according to the contract. What these deficiencies from the contract were in the present case, does not distinctly appear in the bill of exceptions.

So far as the case is stated, the ruling, in the form it was given, is not open to the exceptions taken.

Judgment on the verdict.  