
    Thomas Powell & another vs. Eugene Howard.
    if one who contracted with the owner of land, to grade it in a certain manner, has horn estly endeavored to fulfil the contract, and has substantially done so, with substantial benefit to the landowner, he may recover what his work is fairly worth, on a count upon an account annexed, although he failed to fulfil the contract in some particulars.
    Contract by Thomas Powell and Patrick Conlan, upon' an account annexed, for services in grading land and building a wall. The answer set up that the plaintiffs made a special contract with the defendant, to grade the land and build the wall in a particular manner, and that they did not completely perform the contract.
    At the trial in the superior court, before JDevens, J., the defendant introduced evidence of such a special contract, and requested the judge to rule that if there was a special contract between the parties, and it was not “ absolutely completed,” the verdict in this action must be for the defendant. But the judge refused so to rule,'and ruled “that, in a contract for grading and filling, if the plaintiffs have honestly endeavored to carry out their contract, and have substantially done so, rendering substantial benefit to the defendant, although they have failed in some particulars, they may recover in this action for what their work is fairly worth, having regard to the contract price; that the defendant is entitled to the benefit of his contract; and that, in the case above supposed, there should be deducted from the contract price enough to enable the defendant with the sum thus deducted to make good what he has suffered by the failure of the plaintiffs to fulfil the contract in all particulars, and the plair tiffs should recover only the balance of the contract price due after such deduction.” The jury returned a verdict for the plaintiffs for a less sum than the contract price, and the defendant alleged exceptions.
    
      S. H. Mather, for the defendant.
    
      W. Gr. Sprague, for the plaintiffs.
   By the Court.

The correctness of the ruling excepted to has been settled in this Commonwealth for many years by repeated decisions.

Exceptions overruled.  