If the plaintiff constructed the house for the defendant, under a special contract, as the evidence tended to show, there were such departures from it admitted, that he cannot recover the stipulated price, in a suit upon the agreement. But, as the defendant took possession of the house after the work was done, claiming it as her own, as it is understood, the plaintiff may recover in general indebitatus assumpsit, for the labor and materials; the value to be estimated in reference to the contract price, and the benefit derived by the defendant under the agreement, and not to exceed’ 'that price.
In such cases, the rule of damages laid down in Keck's case, (Buller’s Nisi Prius, 139,) has been much discussed. But the opinion now prevails, and it may be regarded as settled doctrine, that the party accepting the labor and materials under such agreement terminated, may be entitled, in respect to the compensation to be made, to the benefit of the *95contract which he has not repudiated, or contributed to break; and the party furnishing, though he may have failed to fulfil the agreement may still recover for the services and materials the contract price, after deducting so much as they are worth less on account of his departures from the contract. Jewett v. Weston, 11 Maine, 346; Hayward v. Leonard, 7 Pick. 181; Snow v. Ware, 13 Metc. 49 ; Jewell v. Schroeppel, 4 Cowen, 564; Ladue v. Seymour, 24 Wend. 60; Lucas v. Goddwin, 3 Bing. N. C. 737; Chitty on Contracts, 569, note a; 2 Greenl. Ev. § 104.
The rule embraced in the instructions to the jury, that there should be deducted from the contract price as much as it would cost to make the house what it should have been by the contract, might operate unjustly upon the plaintiff, after he had furnished the labor and materials, and the defendant was enjoying the benefit of them. To make the house such, might cost more than the original contract price, and thus the defendant might receive the labor and materials of great value, without making any compensation. If she chooses to take and enjoy the fruits of the contract, she is bound to pay for them, upon the plainest principles of justice, after a deduction is made upon the rule stated. Having accepted the materials and services, she cannot require the plaintiff’ to reconstruct the house, so as to make it conform to the specifications in the contract, nor by a deduction from the contract price, to furnish the means for that purpose.
Exceptions sustained.
Shepley, C. J., and Wells and Hathaway, J. J., concurred.