
    
      William Harwood ads. Tappan & Noble.
    
    1. The rules of pleading have provided an apt and sufficient mode of compelling a party to adhere to the case or defence made by his declaration or plea, but if the other party does not chose to enforce this check, and permits the first party to depart from the case or defence made in the declaration, or plead and take issue on a new case or defence, which is material, and in law is sufficient to support a verdict, it is too late to retrieve the error by motion in arrest of judgment.
    2. Although the omission of an averment of performance of a condition precedent, or of excuse for non-performance, is fatal on demurrer, or in case of judgment by default, yet after verdict, the omission is aided by the common law intendment, that every thing may be presumed to have been proved, necessary to sustain the verdict.
    3. It seems to be an exception where the non-performance of the condition precedent, does not appear on the face of the pleadings.
    4. Where, in the execution of a building contract, there was an omission on the part of the builder in putting up a privy, caused by an unexpected deficiency of space in the lot, but it was in evidence that the employer had admitted that the particulars in which the contract was not performed, were very trifling, and that he had expressed his gratification that the contractor had performed the work so well; this evidence in behalf of the contractor, was sufficient for the jury to infer that the omissions were waived, and the contract accepted as complete.
    5. Where, in a building contract, no time was specified for its completion, evidence offered not to vary the written contract, but to shew what was a reasonable time, by shewing the employer’s own estimate of the time necessary to complete the buildings, was admissible.
    6. If a building be not completed in a reasonable time, and there is consequent delay in the employer’s getting possession, for such delay, rent is a proper measure of damages, and evidence of speculative loss is to be excluded.
    7. Although a discount’claimed by a defendant in an action on a building contract may reduce the amount covenanted to be paid, yet it does not impair the claim for interest on the balance, when adjusted by the verdict of a jury-
    8. Where, in a covenant on a building contract, there has been substantially a completion of the buildings by the undertaker, the jury may find the amount due on the contract, and allow the defendant, by way of discount, any alleged defects.
    
      
      Before Evans, J., at Charleston, Spring Term, 1843.
    This was an action of covenant, upon a builder’s contract, brought in pursuance of a decretal order of the court of equity, made upon a bill to enforce .a specific lien, for payment of the amount claimed to be due on the said contract. The jury found for the plaintiffs the sum of $3,934 62 cents, being the aggregate of the principal sum of $3,274, and interest thereon from 10th June, 1840, to the date of the verdict. The following is the report of the trial, made by his Honor, the presiding Judge.
    
      Report.
    
    This was an issue from Chancery, to ascertain, by the verdict of a jury, how much was still due and unpaid on a building contract between the parties.
    On the 6th August, 1839, the plaintiffs entered into a contract with the defendant, to build two houses in King street, according to a certain plan and specifications, for the sum of fifteen thousand dollars, to be paid at various stages of the building, the last instalment of five thousand dollars to'be paid when the buildings.were finished. By the last of February, 1840, all the money had been paid, except four thousand five hundred and fifty dollars. About the first of April, the lower story of the principal building, intended as a store, was so far finished that it might be usecf for that purpose. The defendant, who, in consequence of the fire, had been compelled to rent a store at a very high price, and iii a much less eligible place of business, was very anxious to get possession of the store; but the plaintiffs refused, unless the whole amount which they claimed was paid, or secured to be paid. After this refusal, Harwood took possession without their consent, and an attempt was made by the plaintiffs to have Harwood ejected, for the forcible entry, but the magistrates and jurors decided in his favor. The papers were returned to the Attorney General, but, by consent of the parties, no further proceedings were had. The plaintiffs proceeded with the work, and about the twelfth June left it, alleging it was finished.
    On the part of the plaintiffs, it was proved by their workmen, that they were directed to finish the work in the best manner; that they were supplied with a competent force; and that they did execute the work according to the specifications, and, as they said, in a reasonable time, and in a workmanlike manner. The only deficiency, they admitted, was a privy, which, it was said, could not be put in the place originally intended, on account of a deficiency in the si2¡e of one of the lots, when it came to be surveyed ; the building of which was at first suspended at Harwood’s request, and afterwards omitted, because he declined, when applied to, to point out the place where to construct it. They also admitted that the cistern leaked, which, it was said, was originally well made, but in consequence of very heavy rains before the cistern was dry, it had a leak at the bottom, which they endeavored to mend, but could not, as they could not pump the wrnter out so as to make it dry. The money for building was obtained mostly from the Bank of the State, under the fire loan Act, as it is'usually called. In August, after the workmen left the building, the defendant applied to the commissioners of inspection, to have his house inspected, for the purpose of obtaining the last instalment from the bank. To these commissioners he spoke in the highest terms of the manner in which the contract had been executed; said the work Was finished ; and expressed a great desire to get the money, that he might pay the mechanics who had served him so well. One of the commissioners (Carew,) said he examined the building, and thought it extremely well made; it was one of the best buildings constructed under the fire loan. One of the witnesses, Rice, said he went over the building, with defendant, in July, 1840. He pointed out only three defects. 1. That the corner gutters leaked. 2. The kitchen fire place was too small. And, 3. The privy was not built on the smaller lot. He told Harwood he came at the request of Jones, the assignee of the plaintiffs, and if any thing was wanted, he was ready to do it. To this offer, the defendant made no answer. He was then in possession. He was the bearer of a letter, with a statement and order. Defendant said he would not pay until the work was finished.
    
      The above contains the substance of what was proved on the part of the plaintiffs.
    The defendant moved for a non suit, which was refused. There were five issues made by the pleadings, viz; 1. General issue. 2. That the defendant received the buildings. 3. That the defendant prevented the plaintiffs from finishing, which they were ready, and offered to do. 4. Whether there were five thousand dollars due. 5, Whether all had been paid, that was due. Beyond this, I have no note of the state of the pleadings. The defendant’s counsel will, of course, produce them, if necessary, to sustain any of his grounds, as set out in the notice.
    In the defence, it appeared, from letters given in evidence, that although the contract was made on the sixth August, nothing was done until after the sixteenth September, as by a letter of that date the plaintiffs say they will forward the plans to-morrow for the foundation walls; but in reply td this, it was proved, that the defendant requested the workman not to- begin until he could get his title perfected, which was not done until the ninth September, and the workman, Concklin, said he began immediately after the survey was made. It was also proved, by several master workmen, who had examined the work, with the plan and-specifications, that, according to their account the c'ontracthad not been completed in several particulars. 1. The privy on one of the lots had not been made, and a closet under a stair-case was' wanting. 2. The foundation wall was only about twenty-six or twenty-seven, instead of thirty, inches thick; a deficiency in the finish of some windows ; the floor of kitchen two feet lower than required ; the rafters of the roof were smaller than the specification required; one door not 'painted. 3. There was no apron of lead where the tin roof joined the brick; the tin was let into the wall, but not deep enough ; the cistern leaked; the kitchen fire-places, and the flues of the chimney, were too small, the effect of which was, that the chimneys smoked, and a sweep could not get up to cleanse them. Besides this, there was some evidence, that the wall was slightly cracked, and that a partition had parted from the wall; both of which were ascribed to the settling of the house, which might arise from the foundation wall being three or four inches narrower than required by the specifications.
    The first question was, whether the plaintiffs had finished the building, so as to entitle them to recover at all for it. On this point, the rule laid down was, that no verdict could be rendered for the plaintiffs unless the houses were substantially finished. The work had all been done except the privy, and the closet. The former had been offered to be made, but the defendant did not point out the place; the latter was a small affair, which had been overlooked, of the value of only a few dollars, and the plaintiffs had proposed to do anything which the defendant would point out as deficient. The other particulars complained of, were mostly such, as that a difference of opinion might, and did, exist about them. All agreed, that except in the matters specified, the buildings were very well done. 'Ihe defendant was in possession, and enjoying the benefit of the plaintiffs’s labor; and the evidence of the bank commissioners, as to the quality of the work, and that it was finished, might be taken as very strong evidence that the defendant considered, at that time, that the work was substantially executed, according to the contract, so as to subject him to pay for it, so much as it was worth.
    In the course of the trial, evidence was offered that at the time the contract was made, the plaintiffs promised to finish the houses by the first of November. This evidence was rejected, as varying the written contract by parol, but in the course of the case some evidence was allowed of the plaintiffs’s declarations that the houses were to be done by that time, not as a part of the contract, but as evidence that they had not completed the buildings in reasonable time. A good deal of evidence was offered to shew that there was unnecessary delay, in consequence of which, the defendant, being obliged to occupy a house in a less eligible place, had had his business diminished; but this I did not consider as sufficiently definite to form an item of damage, so as to authorize any deduction for it. It was the loss of a possible gain.
    There was little doubt that the defendant had an expectation that the stores were to be finished by the first of November. He seemed to have arranged his business so as to take possession of one, and had contracted to rent another, at that time. The jury were instructed, on this point, that, as no time was fixed, the plaintiff's were bound to do the work in reasonable time; and if they had not done so, the defendant ought to be indemnified, by a deduction from what was due, of a reasonable rent for the time he had been kept out of the use of the stores, by the omission of the plaintiffs to finish the work, according to the implied meaning of the contract. Whether the jury did, or did not, allow anything for this, I had no means of forming an opinion. My own opinion was, that the work could not have been done by November, but that the stores might have been finished, so as to be occupied sooner than they were; but on this point there was a difference of opinion. The plaintiffs’s witnesses said there was a competent force, and the work urged forward with all practicable despatch ; and according to their testimony, the defendant expressed no discontent with the progress of the work, and was well satisfed, until he was refused the store in March.
    Besides the defence, that the finishing of the work was a condition precedent to the payment of the last instalment of five thousand dollars, the defendant had a discount, consisting of a store account, loss of profit, loss of rent, deficiency of work not done, work not done according to specifications, and not done in a workmanlike manner; all of which were, estimated by the master workman, who had made'a survey of the houses; and also the cost of marble mantels, and grates, which he had furnished, and some other matters not recollected.
    I ‘charged the jury, that the plaintiffs could recover nothing, unless they had substantially performed their part of the contract, which required the houses to be built according to the plan and specifications, in a reasonable time, and in a workmanlike manner. If, from the evidence, they were satisfied this had not been done, they should find for the defendant. If the plaintiffs were ready, and offered to perform, and the defendant had refused, or declined their services, or had dispensed with them, this was equivalent to performance.
    
      2. If they had substantially completed the houses, or the defendant had declined their services, then the plaintiffs were intitled to recover the amount still due, deducting such items of the defendant’s discount as had been proved, and which, by law, were the subject of discount.
    3. That the plaintiff's were entitled to’interest on the balance due, after deducting the discounts.
    The jury found a verdict for the plaintiffs, for $3,278, with interest from 10th June, 1840, which, at the request of Mr. Hunt, they were allowed to alter, by finding $3,934,-62, which "was the gross amount of principal and interest.
    It appeared in the course of the trial, that extensive alterations and additions had been made in the original plan. These were the subject of a separate suit, which had been previously tried. I saw no difficulty in distinguishing between the two. The only work rendered unnecessary by the alterations were some windows, and the jury were directed to allow a deduction for them, as work not done by the agreement of the parties.
    The grounds of appeal are annexed.
    The defendant appealed from the verdict rendered in this case, and moved that the same might be set aside, and judgment arrested, or a non-suit, or new trial awarded, on the following grounds.
    
      In Arrest.
    
    1. That the action is for the last instalment, which, by the terms of the contract, was not to be paid until the buildings were “finished;” and the finishing was, therefore, a condition precedent, and the declaration ought to have alleged performance, or an excuse for non-performance, but does not, in fact, contain either of these averments.
    2. That the absence of any allegation of performance, or excuse for non-performance, of the condition precedent, is not supplied by the averment in the declaration, that the defendant “received, and entered into the buildings, so agreed to be builtwhich averment, it is submitted, is not sufficient to sustain the action, and the issue thereon is, therefore, immaterial.
    
      3. That the defect, in the necessary allegations of the declaration, is not supplied by the issues on the plea of non est factum, or the several pleas of payment; inasmuch as neither of them raise the question as to the performance, or excuse for non-performance, on which the right of the plaintiffs to recover at all entirely depends.
    4. That the defect in the declaration is not supplied by the allegation in the replication to the third plea, that the plaintiffs endeavored to complete the buildings, so far as they were permitted by the defendant, and being forbidden, hindered, and prevented, from completing all the specifications, some small and unimportant parts thereof may have remained unfinished, by reason of said hindrance ; nor is the defect aided by the allegation in the replication to the fourth plea, that the plaintiffs “did' complete and finish said buildings, and out-buildings, according to the form and effect of the said indenture, and tile plan and specifications.” Because, first, a radical defect in the declaration cannot be supplied by allegations in the replications ; because, secondly, the said allegations are inconsistent with each other, and the declaration, had it contained them, would have been bad for duplicity and repugnancy ; and had either of them been contained in the declaration, a replication containing the other of them, would have been a departure in pleading ; and because, thirdly, the replication to the third plea contains no direct or sufficient averment, either of a performance, or an excuse for non-performance.
    5. That notwithstanding the verdict, there is nothing on the record that entitles the plaintiffs to judgment.
    
      For Non-suit.
    1» That his Honor ought to have granted the motion made for a non-suit, on the ground of the defects in the record above set forth.
    2. That there was no evidence of even a substantial performance of the condition precedent, to entitle the plaintiffs to a verdict in this form of action; but, on the contrary, it was proved by the plaintiffs’s own witnesses, that the plaintiffs’s contract to finish the buildings was not performed.
    
      3. That still less was there any evidence, that the plaintiffs were not permitted, or were forbidden, hindered or prevented, by the defendant, from finishing the buildings according to their contract.
    4. That, as it appeared by the plaintiffs’s evidence, there were important and substantial variations in the work done, from the plan and specifications contained in the contract; and no allegation in the declaration, that these variations had been assented to by the defendant.
    
      For a neio trial.
    
    1. That his Honor erred in excluding the evidence offered through the witnesses, Franklin Robbins, Stephen Watson and Arthur Fogartie, of an express agreement between the plaintiffs and defendant, as to. the time when the defendant 'was to be put in possession of the stores, and when the rest of the buildings were to be finished. It being respectfully submitted, first, that this parol agreement neither varies nor contradicts the written agreement, but merely renders certain, by parol, that which the parties did not intend to make certain by the writing; second, that the evidence was admissible, to establish what was a reasonable time, within which, even under the written contract, the defendant was entitled to require that the buildings should be finished; third, that it was admissible as evidence of a distinct contract, for the non-performance of which the defendant was entitled to damages, as a discount to plaintiffs’s demand; and fourth, that it was admissible, to reduce the amount to which the plaintiffs might be equitably entitled, although, in strict law, they were not entitled to recover at all, inasmuch as the condition precedent had not been performed according to the terms of their covenant.
    2. That his Honor erred in instructing the jury, that notwithstanding the deficiencies in the work required by the contract, and the gross defects in what was done, the jury might regard what was done as a substantial performance of the condition precedent, and compensate the defendant by an allowance, in the shape of a discount, for all the deficiencies and defects.
    
      3. That his Honor erred in charging the jury, that the defendant was not entitled to any abatement for the loss in his business, occasioned by the plaintiffs’s failure to put him in possession of the stores in a reasonable time; it being respectfully submitted, that the plaintiffs could be only equitably entitled to recover any thing, and, therefore, all equitable circumstances in abatement of his claim ought to have been considered by the jury.
    4. That the defendant was entitled to a discount for the loss sustained in the contract for a lease of one of the stores to O. & G. Taylor, in consequence of the store’s not being finished in a reasonable time; and that his Honor ought so to have instructed the jury.
    5. That the evidence distinctly established, that even such parts of the buildings as were erected, were not completed according to the contract, but that extensive changes had been made in the plan, to which it was said the defendant had assented by parol; and it is respectfully submitted, that upon this evidence, the plaintiffs were not entitled to recover at all in this action ; or, at all events, not without alleging in the declaration, that these changes in the contract had been agreed to by the defendant; and his Honor ought so to have charged.
    6. That his Honor erred in charging, that the plaintiffs were entitled to interest, although the demand was not liquidated, either as to time or amount, and although it was proved that the settlement of the plaintiffs’s claims was postponed by the refusal of themselves and their assignee, to come to any settlement, if defendant insisted on all the deficiencies in the execution of the contract being supplied.
    7. That his Honor permitted the jury, after the verdict had been published, at the suggestion of the plaintiffs’s attorney, to alter the verdict from $3,278,12, to $3,934,62, so as to include interest from the tenth of June, 1840, up to the time of the verdict.
    8. That the verdict is altogether contrary to law and the evidence.
    
      Bailey & Yeadon, for the motion.
    
      Hunt, contra.
   Curia, per

Frost, J.

The defendant’s motion in arrest of judgment derives no support from the first, second, fourth and fifth pleas, and the issues thereon, and in determining that motion, they may be dismissed from consideration. It is affirmed that the covenant of the plaintiffs to finish the buildings, constitutes a condition precedent, the performance of which is not sufficiently averred in the declaration, and that the defect in the declaration is not aided by the subsequent pleadings, so as to entitle the plaintiffs to enter judgment on the verdict rendered. Admitting, for the argument, that the covenant of the plaintiffs is a condition precedent, as maintained by the defendant, and that performance, or excuse for non-performance, must be avered and proved, to entitle them to recover the price agreed to be paid by the defendant, it is to be considered w'hether, on the record, such performance or excuse is not sufficiently put in issue. The declaration sets out the deed, and avers that the plaintiffs had performed all things on their part to be performed, according to the tenor and effect of the indenture. The third plea denies that the plaintiffs had finished the buildings and out-buildings according to the form and effect of the indenture. The replication to the third plea avers that the plaintiffs did offer and attempt to finish the said buildings and out-buildings according to the effect of the indenture, and did finish them so far as they were permitted by defendant; and being so hindered from completing all the specifications, some small and unimportant parts may have remained unfinished by such hindrance. The rejoinder avers that the plaintiffs, in their own wrong, and without being hindered by the defendant, did not, and would not, finish the buildings and out-buildings ; and issue was joined. The averment of performance in the declaration seems to be sufficient.

In Wright vs. Tattle, 4 Day’s Con. Rep. 316, by the whole court it Was ruled that a general averment of performance is not only sufficient, but is most proper. In the three first precedents of declaration in covenant, 2 Chit. Pl. 517, performance is averred, as in the plaintiffs’s declaration. The third precedent exactly corresponds with this, in the very form and terms of the averment. Indeed, it is not possible to conceive how performance can be more effectually averred, than by setting out the deed literally, and affirming performance according to the intent and meaning of it, If, in this respect, the declaration is imperfect, the defendant might and should have demurred, “The omission of the averment of performance of a condition precedent, or of an excuse for non-performance, is fatal on demurrer,” 1 Chit. Pl. 360. But the defendant might waive the demurrer, as he has done, and plead that the defendant did not perform; when the plaintiffs replied, that they had performed in part, and excused the performance of the rest of their covenant, this was a departure, and defendant might have demurred again. “A departure in pleading is said to be, when a party quits or departs from the case or defence which he has first made, and has recourse to another, It occurs when the replication contains matter not pursuant to the declaration, and which does not support and fortify it,” 1 Chit. Pl. 681. It may be either in the substance of the action, or the law on which it is founded, p. 682. “As if in debt on bond, conditioned for performance of covenants, the defendant plead performance, the plaintiff' reply, and assign a breach, the defendant cannot rejoin matter in excuse of performance.” 1 Chit, PI. 683. The rule which applies to the defendant in debt on bond for the performance of covenants, applies to the plaintiff in an action of covenant.

The plaintiffs’s replication is clearly a departure front the declaration. The fourth ground for arrest of judgment affirms it to be so. Here was a fatal error. 1 Chit. PI. 686. “The mode of taking advantage of a departure is, by demurrer, general or special.” In Sterns vs. Patterson, 14 John. Rep. 132, it was decided that a departure was fatal on a general demurrer. The defendant might waive the demurrer again, as he has done, and take issue on the replication that the plaintiffs had performed their covenant, except in some immaterial particulai's, in which they were prevented by the defendant. The record then presents a complete, substantial, materiál issue, which does truly present the points in dispute between the parties, and supplies, in fact, the alleged imperfection of the declaration, in not setting out performance of part, and an excuse for not performing the rest of his covenant to finish the builc!ings. But it is insisted by the defendant, that a replication cannot supply the defects of the declaration, and that judgment must be arrested. 1 Chit. PI. 686. “The only mode of taking advantage of a departure is, by demurrer, which may be either general or special, and if the defendant or plaintiff, instead of demurring, take issue on the replication, and it be found against him, the court will not arrest the judgment.” Richards vs. Hodges, 2 Saund. Rep. 83, w7as an action of debt on bond for performance of covenants. Defendant pleaded non-damnificatus generally, and plaintiff replied, and shewed how damnified ; and defendant replied, that plaintiff was damnified of his own wrong; plaintiff demurred, and had judgment, “because,” by the judgment of the court, “the rejoinder was a departure from the first plea in bar; for the defendant in his plea says, the parishioners were not damnified, and when the plaintiffs, by their replication, shew how they were damnified, defendant cannot rejoin that the damnification was in their own wrong, as he has done, but ought to have pleaded it in his first plea in bar, and, therefore, it was adjudged for the plaintiffs.” Hays vs. Bryant, 1 Henry Blac. 553, wTas jikj3 Richards vs. Hodges, debt on bond by the overseers oluie poor, conditioned to indemnify against the charges for maintenance of two bastard children. Defendant pleaded non-damnificatus; plaintiffs replied, that defendant provided no necessaries for the children, which the plaintiffs were obliged to do at the expense of the. parish. Defendant rejoined, that plaintiffs had no order of the justices, and, therefore, they supplied the necessaries voluntarily, and in their own wrong, on which plaintiffs took issue, and the verdict was for the plaintiffs. A rule to shew cause why the verdict should not be set aside and non-suit ordered, was discharged. These authorities seem conclusive against the defendant’s motion in arrest of judgment. The rules of pleading have provided an apt and efficient mode of compelling a party to adhere to the case or defence made in his declaration or plea, but if the other party does not chose to enforce this check, and permits the first party to depart from the case or defence made in the declaration or plea, and takes issue on a new case or defence, which is material, and in law is sufficient to support a verdict, it is too late to retrieve the error by motion in arrest of judgment.

But the verdict presents an insuperable objection to the defendant’s motion. 1 Chit. PI. 360. “The omission of the averment of performance of a condition precedent, or of the excuse for the non-performance, is fatal on demurrer, or in case of judgment by default; but after the verdict, the omission may, in some cases, be aided by the common law intendment, that every thing may be presumed to have been proved which was necessary to sustain the verdict.” At the end of the same paragraph it is added, “but where the non-performance of the condition precedent appears on the face of the pleading, a verdict will not aid the defect.” The only authority cited by Chitty for this exception to the rule, is the case of Worsely vs. Hood, 7 T. R. 710. That was an action to recover the loss on a policy of insurance against fire, of which it was a condition, that in case of loss, the insured, in order to claim payment, should produce the certificate of the parson of the parish to his good character and the justice of his claim. In the declaration were two counts, the first avered the production of the certificate of four respectable persons; and the second, avered no certificate at all. The omission of this averment was pleaded to both counts. The only excuse offered in the pleading for the omission to produce the certificate of the parson of the parish was, that he wrongfully refused it. After judgment for defendants, a venire de novo was suggested by the counsel for defendant. Lord Kenyon refused it, because it would avail nothing, since the certificate was not avered in the declaration, nor in any part of the proceedings. It cannot be objected that performance, or excuse for non-performance, which is said to be the condition precedent, does not appear in the pleadings in this case.

The motion for a non-suit presents little difficulty. The defendant’s attorney admitted that it was supported principally by the alleged defect in the declaration in not avering performance, and the insufficiency of the replication to supply that defect. But even if the issue were taken on the declaration, there was sufficient proof offered by the plaintiffs to submit the case to the jury. The particulars in which the contract was not performed, according to the defendant’s own admission, were very trifling, and he represented to the fire loan commissioners that the contract was finished, and expressed his gratification that the contractor had performed the work so well. One of the commissioners, a highly intelligent gentleman, represented the work to have been extremely well done, and that the building is one of the best in the city. Connecting this fact with the trifling omission in tbe contract, (and that caused by an unexpected deficiency of space in the lot) and the defendant’s declaration that the contract was completed in a very satisfactory manner, the evidence ip behalf of the plaintiffs was sufficient for the jury to infer that the omissions were waived, and the contract accepted, as complete and finished, by the defendant.

The first ground taken for a new trial is, that evidence of the time when it was agreed by the parties, verbally, that the buildings should be finished, was excluded. If that evidence was offered to add an additional stipulation to the terms of the indenture, in which no time was specified for the completion of them, the effect of it would be, to add to a written contract by parol. In this view, it was properly rejected. In so far as that evidence was available to shew what was a reasonable time, by shewing the plaintiffs’s own estimate of the time necessary to complete the buildings, the presiding Judge reports that the plaintiffs’s declarations, that the buildings were to be finished by the first of November, were admitted. For this purpose only, was the evidence admissible, and it must be presumed to have had due consideration in the verdict.

The third and fourth grounds for a new trial, object to the exclusion of evidence of conjectural loss in the defendant’s business, by the delay to obtain the buildings, and for the defect of a contract to lease one of the stores. Extraordinary, remote, and contingent damages, which may be imputed to a breach of contract, are not recoverable. The indefinite nature and extent of such damages are sufficient to preclude them. In Haydon vs. Cabot, 17 Mass. R. it was decided that speculative injuries, having no.immediate connexion with the breach of contract complained of, furnish no legitimate basis on which to calculate damages. In Gilpins vs. Consequa, 1 Peters. C. C. R. 86, it was held that in estimating damages for the breach of a contract, the plaintiff is not to recover what he might have made, had the contract been literally fulfilled. In Bond vs. Quattlebum, 1 McC. 584, a conjectural loss, which might be sustained by reducing the profits of a mill, were excluded from consideration in estimating damages arising from eviction of a purchase of land. The allowance of rent was the proper measure of damages for the delay in finishing the buildings, and evidence of the speculative loss from business was properly rejected.

The sixth and seventh grounds present the question whether interest can be allowed on this contract by way of damages. By the decisions of this State, wherever a party stipulates in writing to pay money on a certain day, or on the performance of any stipulation or contract, interest is allowed. Sitar & Price vs. Robinson, 2 Bailey, 374; Dorrill vs. Stephens, 4 McC. 59; Ryan vs. Baldrick 3 McC. 498. On the admitted completion and receipt of the buildings, interest would have been unquestionably allowable from the time of completion, The discount claimed by the defendantmay reduce the amount covenanted to be paid, but does not impair the claim for interest on the balance, when adjusted by the verdict of the jury.

The second ground excepts to the instruction of the Judge that the jury, notwithstanding the deficiencies in the work required by the contract, and the gross defects in what was done, might regard what was done as a substantial performance of the condition precedent, and compensate the defendant by an allowance in the shape of discount for all deficiencies and defects. The plaintiffs’s testimony shews that by the admission of the defendant, in July, 1840, the only deficiencies of which defendant complained, were the leak in the gutter, the size of the kitchen fire place, and the privy. The defendant’s witnesses only added the deficiency in the thickness of the foundation walls, and some trifling particulars. The verdict is relied on to shew that the jury abated about eleven hundred dollars from the whole contract of fifteen thousand. But there is no evidence, nor authority, to assume that this abatement was altogether on account of the omissions in the contract.

The defendant claimed a discount for more than seven thousand, six hundred dollars, of which more than half was for loss of business, interest, rent, &c. &c. The verdict cannot control the proof, by which the omissions appear to have been very inconsiderable. Even if they greatly exceeded what was proved, the cases of Boone vs. Eyre, 1 H. Black, and Campbell vs. Jones, 6 T. R. 370, fully support the submission to the jury, whether the contract had been substantially performed. In the latter case the plaintiff performed only one half of w7hat he had covenanted to do, and it was deemed a substantial performance. Sergeant Williams, in the note to Saunders, 320, remarks on these and other cases commented on, “hence it appears that the reason of the decision in these, and other similar cases, besides the inequality of the damages, seems to be, that when a person has received a part of the consideration for which he entered into the agreement, it would be unjust that because he had not had the whole, he should therefore be permitted to enjoy that part without paying, or doing any thing for it. Therefore the law obliges him to perform the agreement on his part, and leaves him to his remedy, to recover any damage he may have sustained in not having received the whole consideration. The defendant has had that remedy by his discount, in this case. All the motions are dismissed.

Richardson, O’Neall, Evans and Butler, JJ. concurred.  