I dissent from the prevailing opinion.
The plaintiff sued to recover of the defendant $298.32 which he-claimed to be due him for services as an architect and for goods sold and delivered. The answer admitted the claim, which-, with interest, amounted to $314.26, and alleged as a counterclaim a liability of the plaintiff to one Mrs. Weber, the claim having been assigned by her to the defendant. This liability was alleged to arise out of a-*499contract by which the plaintiff agreed to build a house for her at an agreed price. The answer also alleged that the plaintiff failed to do this, to the damage of Mrs. Weber $185.79, this amount being fixed by counsel at the trial; and that by reason of the plaintiff’s act in improperly locating the building an action was brought against her to restrain the erection of it, the successful defense of which action cost her $250 in counsel fees. The aggregate of these claims, $435.78, exceeded the plaintiff’s claim by $137.46. The jury rendered a verdict of $121.50 for the defendant, and the plaintiff appeals.from the judgment entered thereon.
The defendant contended that the plaintiff contracted to "build for Mrs. Weber, or to have built for her, a house at a definite cost, the items of which were stated in a paper which she produced, and that the cost exceeded the limit by $185.78. On the .other hand, the plaintiff claimed that the paper was a mere estimate of cost and not a guaranty. There being conflicting evidence, the court distinctly submitted the question to the jury and they would have been justified in finding a verdict for either party.
The second part of the counterclaim relates to a counsel fee paid by Mrs. Weber in defending a suit brought to enjoin her from maintaining any part of the building beyond the building line established in the covenant in her deed, and for equitable relief. The court dismissed the complaint without prejudice to any action which might be brought at law for damages sustained by breach of the covenant. In the case at bar there is evidence tending to show that the plaintiff admitted- that the locating of the building was his act; that he, if any one, should be liable for damages, and promised to-pay the expense of defending the equitable action. This was denied by the plaintiff, but here, again, was a disputed question of fact which was submitted to the jury.
The appellant further argues that the verdict was contrary to the evidence and that the jury disregarded the charge. There was no exception to the charge. While this court may set aside a verdict if it be of the character described, I cannot see that the contention of the plaintiff’s counsel in this case is sustained by the facts. I think he misunderstands the part of the charge cited. in his brief in relation to the amount of damages and the deductions which were to be made according to the view the jury might take of the facts. *500They might have found, on the evidence, that the plaintiff agre.ed to complete, the building according to the plans and specifications annexed to the contract, but not printed in the record, and the court so charged. I see no reason for assigning error to the charge in this respect. .
I think that the judgment should be affirmed.
Judgment reversed and new trial granted, costs to abide the event.