*322The opinion of the court was drawn up by
Shepley J.It is insisted in the argument for the plaintiff, that the verdict ought to be set aside and a new trial granted: —■
1. Because the committee chosen to build the house were admitted as witnesses for the defendants. The objection to them is not, that they were interested as members of the district, for that is removed by the provisions of the statute c. 87 ; but it is, that being agents of the district, if they have not acted faithfully, they are liable to the district and therefore interested. But a recovery in this case would not imply any fault on their part, and they do not therefore necessarily gain or lose by the result. And the verdict would not be evidence for or against them upon the trial of that question. They stand in this respect like town officers and agents, who have always been admitted as witnesses for their towns.
2. It is contended, that there was error in requiring the house to be finished within the time stipulated. There are cases, in which time is not regarded as of the essence of the contract, and equity will relieve against it. But in an action at law, when the question is, whether a party has performed a contract requiring that performance shall be made within a certain time, the Courts cannot say, that is immaterial, which the parties by their contract have made material. It is said, that the jury should have been instructed, that the testimony if believed, proved a waiver of the time. The Judge properly left it to the jury to consider whether there had been such a waiver proved, and if a more specific instruction was desired upon that point, it should have been requested.
3. It is said, the jury should have been instructed, that a substantial compliance was sufficient; that nothing is perfect, and that trifling defects may always be found. It may be quite true, that no mechanical work is perfect. The question did not arise upon the perfection of the work, but upon performance agreeably to the contract; and that, it is to be presumed, was practicable, and good faith required it.
4. That the jury should have been instructed, that if the plaintiff failed to fulfil his contract, he was entitled to recover for the value of the materials. The jury, under the instructions which were given, must have found, that the house was not built accord*323ing to the contract, that the committee did not unreasonably refuse to accept it, that there was no express or implied acceptance, and that the defendants had derived no benefit from it. Upon such a state of facts it would be difficult to perceive upon what principles of law or justice, the defendants should be required to make up to the plaintiff any portion of the loss occasioned by his own neglect or misconduct. There can be no just ground, upon which the defendants can be called upon to pay, unless it be their duty to take the building or materials and make the best use or disposition of them in their power and account to the plaintiff. What right has the plaintiff to call upon them to assume such a responsibility and duty ? Are his faults to be made the occasion of imposing upon those, who are without fault, a task so undesirable ? It should at least be shown before they can be required to do this, that they have refused to permit the plaintiff to remove them. The parties having agreed in the contract, that the building might be erected on the defendants’ land, it was not placed there by wrong, and it could not for that reason become their property. It is said, that where a building is placed upon the land of another, it becomes his property, unless tbe party building, on account of the relation in which the parties stand toward each other, such as landlord and tenant and the like, be entitled to remove it. But where such relation does not exist, if it be put on by consent, the more fact of placing it there does not transfer the property; some other act must take place to have that effect. It is true, that while a building is being constructed for another under a contract, it must be regarded as so far attached to the freehold, that it cannot be removed until the owner of the land by refusing to accept it disclaims the ownership, because the design is, that it. should bo built for his use; and it is to be his upon condition, that he does not reject it on the ground, that it has not. been built according to agreement. But when he does so reject it, his conditional title is terminated, especially when he has also directed it to be removed. It is said, that the committee had no authority to notify the plaintiff to remove the building. The power to build the house, gives by implication such a control of the land and materials and work, as to enable them at all times to reject and displace any materials wrought or unwrought, and *324in any state of preparation; and this power is not lessened or lost until the whole trust is executed, and their power thereby extinguished. The argument supposes, that the Judge instructed the jury, that the house could not be beneficial to the district, because another had been built. But the language used by him is not liable to such a construction. He instructs the jury, “ that it was not such a benefit to the defendants, as to enable the plaintiff to recover, if the house had never been used and was rendered unnecessary as a school-house, by reason of the new house being built by the district,” thereby submitting it to the jury to decide, whether for that "and other reasons it was or not beneficial to the district.
5. The Judge instructed the jury, “ that if there were defects in the earlier stages of the work, and the committee had waived those defects, or accepted the parts to which such defects attached, yet the plaintiff would not be entitled to recover, unless the subsequent parts of the work had either been made conformable to the contract, or had been acceptedand it is said, that in this there was error. And the argument is illustrated, by supposing a well to have been sunk and accepted to the top stones, and those to have been improperly and unfaithfully laid. In the supposed case, the parts faithfully and unfaithfully executed would not be so connected as to be incapable of separation and re-construction without an injury to, or a destruction of, the whole work. Such would not usually be the condition of the unfaithful construction of parts of a building. What value would there be in the well constructed parts of a building combined with other parts so badly constructed as to render the whole building unsuited to the purposes for which it was designed ? But if that argument be not satisfactorily answered, it is sufficient to justify the instructions, that if parts were accepted, it must be implied, that they were so only upon condition that the remaining parts should be built according to the contract.
6. It is said, that the notice to the workmen was insufficient. Admitting it to be so, the case states, that the committee had before pointed out defects, and “ notified him, that the house would not be accepted, unless these defects should be remedied.” And “ thé plaintiff replied, that he should do the work as he pleased, should make a good house, and did not wish their adjudication or interferance till the work was done,” After such a notice to them no ira*325plication could arise from their silence, that their notice was withdrawn, or that his acts were approved ; and he cannot reasonably complain of their neglecting to give him any further notice until they were called upon to accept the house.
In the case of Norris v. School District in Windsor, 3 Fairf. 293, the work had proceeded under the eyes of the committee without objection except by one, who was not regarded as authorized to speak for them. And such conduct was considered as equivalent to an acquiescence, from which the jury might infer a promise to pay.
In the case of Knowlton v. Plantation No. 4, 14 Maine R. 20, the cases of Hayden v. Madison, and of Abbott v. Hermon, are commented upon, and fully distinguished from such a case as the present.
Judgment on the verdict.