concurring in part and dissenting in part:
I concur in that portion of the majority opinion which reverses the decision of the trial court regarding the award of damages for lost profits. However, there are other problems with the decision of the trial court which, in my view, require a retrial on other issues as well.
First, the trial court found that there were actually two separate contracts involved — one for the south building and one for the north building. As to the south building, after discussing the various things which the defendant landowner said were wrong with the construction work which the plaintiff had contracted to do, the trial court found “that plaintiff has substantially performed his contract concerning the South building in a good and workmanlike manner.” The trial court then allowed the plaintiff the contract price for the south building, less certain setoffs for work not completed or work improperly completed which would require repair. The important thing is that the trial court found that the plaintiff had substantially performed its contract on the south building in a good and workmanlike manner. Inexplicably, how*245ever, the trial court later found that “[p]laintiff is not entitled to foreclosure of its materialmen’s lien [on the south property] because it did not complete the contract and left a substantial amount of the work undone as set forth hereinabove.” There is no way to reconcile what the trial court did with regard to the south building. If the court was correct that “plaintiff has substantially performed his contract concerning the South building,” then under Hafer v. Horn, 95 Idaho 621, 515 P.2d 1013 (1973), the contractor was entitled to a lien on the south building and to have the lien foreclosed. If the plaintiff had not substantially completed the contract on the south building, then he could not recover the contract price, less setoffs, but would at most be entitled to some compensation on a quasi-contractual theory. See Nelson v. Hazel, 91 Idaho 850, 433 P.2d 120 (1967).
With regard to the north building, a similar problem exists. The trial court, in its memorandum opinion, concluded that “plaintiff has not substantially performed its contract concerning the north building However, the court then proceeded to award plaintiff the contract price for the north building, less the offsets for unfinished items and the cost of repair of work which had been performed defectively. If the court was correct in its conclusion that the plaintiff had not substantially performed its contract concerning the north building, then it could not award plaintiff damages based upon the contract price of the north building. Plaintiff would, at best, be entitled to some quasi-contractual recovery. Nelson v. Hazel, supra.
For the foregoing reasons I would reverse the judgment of the trial court and remand for a new trial on the question of damages and materialmen’s lien.
BISTLINE, J., concurs.