Opinion by
Mr. Chief Justice Sterrett,It may be true, as stated by the learned counsel for appellee in his argument, that “ substantial justice has been done in this case by the verdict of the jury; ” but it is by no means certain that such was the result. Our examination of the charge in connection with the testimony has satisfied all of us that the instructions contained in so much thereof as is recited in the specification of error were erroneous, and the jury were thereby misled to the defendant’s prejudice. In the first sentence of that excerpt, the learned judge said: “Now, if you believe .... that the plaintiff refused to go on unless he received a payment of one hundred dollars, and that the contract did not provide for that payment, and that there was no custom of the trade and no understanding of the parties or acts of theirs, evincing that that was the custom, and that therefore the plaintiff' broke his contract and refused to go on because payment was not made, he would be entitled to recover for the value of the work less what it cost the defendant to complete the contract in accordance with its terms.”
We are not aware that it has ever been recognized as a sound principle of the law of contracts that a plaintiff who has willfully defaulted in the substantial performance of an entire contract may nevertheless recover to the extent of his part performance. Equally unsound and untenable is the subsequent instruction to the effect that plaintiff in this case could recover his claim unless defendant proved affirmatively that he had suffered damage by plaintiff’s default. Our own cases, among which are Martin v. Schoenberger, 8 W. & S. 367, and Gillespie Tool Co. v. Wilson, 123 Pa. 19, inculcate no such doctrine. In the former it was said : “ To permit a man to recover for part performance of an entire contract, or to permit him to recover on his agreement when he has failed to perform, would tend to demoralize the whole country. . . . No plaintiff ought ever to be permitted to recover for part performance of his engagements unless prevented by the defendant from per*50forming or so trifled with that it becomes his duty to declare the contract at an end.”
In this case, the plaintiff’s agreement, as set forth in his statement, is an entire contract and the excuse he assigns for admitted non-performance, is that he “ was not permitted to complete it, although he was ready and willing to do so.” The burthen of proving this was on him and if he failed to make the necessary proof it was either his fault or his misfortune.
It follows from what has been said, in relation to that part of the charge recited in the specification of error, that as a whole it is erroneous and misleading, and the judgment must be reversed.
Judgment reversed and a venire facias de novo awarded.