In this case substantial justice has been done to the parties, and it devolves upon the court to determine whether such justice has been meted out in accordance with the rules of law. The plaintiff contracted to put up the walls of a cobble stone house which the defendants designed constructing, and to put them up in a workmanlike manner and within a specified time. He did put up the walls within the time specified, but failed to do so in a workmanlike manner; but on the contrary, he constructed the same in so unskilful, negligent and unworkmanlike a manner, that by reason thereof the walls are cracked, warped and unsafe, and cannot be made good and safe walls without taking down and rebuilding two-fifths of the same.
The rule which requires a party for whom a piece of work is to be done to accept the work in a state unfit for use, and to be at the trouble and expense of remodeling the work, and paying for what has been done (deducting the damages), is in many cases unjust and oppressive to the employer. Yet the opposite rule, viz., to reject the claim of the contractor entirely, might in many cases work great injustice. It is therefore difficult to draw the dividing line so as to establish any rule which shall be free from objection. Where the contract has not been substantially performed, the contractor cannot recover. Where it has been performed, but not in the time or manner specified, he can recover what the services are worth to the other party, according to the price fixed by the contract; and the employer is compellable to pay for work which he is reluctant to use and ought not to be compelled to use. In a case such as this appears to be from the finding of the referee and the evidence, many men would greatly prefer the materials *Page 98 before they were made into the walls, to having the wall as laid. Yet it appears in evidence, and by the supplemental report, that the value of the wall, after deducting the costs of putting it in a condition fit to be used, is $104.60.
The case of Jewell v. Schroeppel (4 Cow., 564) is the leading case in this state as to the right of the plaintiff to recover, where the work has been performed, but not in pursuance of the agreement. In that case, however, the agent of the defendant had accepted the work as completed, and did not object that any part of it was defective. In reference to the evidence on that point, Mr. Justice SUTHERLAND, who delivered the opinion of the court, says: "I am inclined to think that this testimony, connected with other circumstances in the case, would authorize a jury to believe that a special agreement, of the nature stated in the declaration, was in fact made, but at all events it strengthens and confirms the plaintiff's right to recover under the common counts. If the defendant intended to rescind the contract it was his duty then to have spoken." In the case at bar it is expressly found by the report of the referee, that the work was not accepted.
The case of Pike v. Butler (4 Comst., 360) is more like this case than any other we have found. A lease executed by Thomas C. Butler as lessor, and Elizabeth Parcels as lessee, contained a covenant on the part of the lessor, that if the lessee should erect upon the lot a brick dwelling-house corresponding in elevation with the house then on the premises, the lessor at the termination of the lease, or at the end of the second term if renewed, would pay to the lessee the value of the building, to be ascertained by three appraisers, not to exceed $2500. A brick building was erected on the premises, designed to be used and occupied as a cabinet-maker's shop, and not corresponding in height with the dwelling already on the premises, but the building so erected was capable of being converted into a dwelling, according to the requirement *Page 99 of the lease, without any considerable delay or expense. The building was used as a cabinet-maker's shop till the expiration of the lease. The plaintiff filed his bill to compel payment of the value of the building so erected. The bill alleged, among other things, that the defendants by their conduct induced the plaintiff to believe that the building, although not erected and completed as a dwelling, according to the terms of the lease, was nevertheless satisfactory to them, and that they would pay him the value thereof, until it was too late for him to convert it into a dwelling according to the contract. Held, that the plaintiff was not entitled to the relief sought.
If, therefore, a building capable of being converted into a dwelling-house, according to the requirements of the lease, without any considerable delay or expense, as in the case ofPike v. Butler, does not authorize the court to grant relief, it is clear that the plaintiff in this case, who has constructed the walls in so unskilful, negligent and unworkmanlike a manner, that by reason thereof they are cracked, warped and unsafe, and cannot be made good and safe walls without taking down and rebuilding two-fifths of the same, is not entitled to recover, but, on the contrary, he should be dealt with precisely as though he had built but three-fifths of the walls in question. The contract was only three-fifths performed, and the plaintiff is not entitled to recover for what he has done. But it is said that the referee finds that the plaintiff performed extra work for the defendants to the value of $4.40, and the plaintiff was at least entitled to judgment for that sum. It does not appear whether the extra work was performed on that part of the work which it was necessary to have taken down, or on the other part. If on the former, the extra work was of no value, and we will intend, in support of the judgment, that it was upon that part.
The objection to the testimony is not well taken. The witness Rich did not testify to any opinion on the subject, *Page 100 and the other witnesses were all experts and their opinions were admissible.
The judgment should be affirmed, with costs.
DENIO, J., did not hear the argument.
All the other judges concurring in the above conclusions,
Judgment affirmed.