
    WALTER E. ISETTS v. LOUIS BLIWISE.
    Argued February 23, 1905
    Decided March 10, 1905.
    There was evidence from which the District Court might find that the contract had been substantially performed, and this finding is not open to review.
    On appeal from the First District Court of Newark.
    Before Justices Dixon, Garrison and Swayze.
    For the plaintiff, Northrup & Lafferty.
    
    For the defendant, Michael J. Tansey.
    
   The opinion of the court was delivered by

Swayze, J.

This is an action to recover a balance of the contract price for erecting a building. The defence was that the plaintiff had failed to perform his -contract. No plea was necessary to present this defence in the District Court. The defendant did, however, file a notice of recoupment, setting up the failure of the plaintiff to comply with the contract and claiming damages therefor, and the District Court allowed damages for this defect in performance. The defendant now insists that tire plaintiff was not entitled to recover the balance of the contract price, and that the judgment should have been for the defendant.

It seems to be conceded by the brief filed for the defendant that if there was a substantial compliance by the plaintiff with the terms of the contract he would be entitled to recover the contract price, less a fair allowance to make good the defects in the performance of the contract. Feeney v. Bardsley, 37 Vroom 239.

The District Court judge found, as a fact, that there had been a substantial performance of the contract. The only question open, therefore, is whether there was any evidence from which the District Court judge might so find. We think there was,-and the judgment must be affirmed, with costs.  