This motion is founded upon a misconception of the duties of the court and of the commissioner upon a petition to establish the truth of exceptions. Such a petition seeks to control the official certificate of a single justice of the Superior Court or of this court, and is within the exclusive jurisdiction of the full court, before which the exceptions, when allowed or proved, should be heard, and which alone has appellate powers in matters of law ruled by a single justice of either court. Priest v. Groton, 103 Mass. 530. From the inconvenience of trying contested questions of fact before the full court, the practice has been adopted of referring the petition, if seasonably filed and in due form, to a commissioner, in the first instance, to hear the parties and report to the court the facts bearing upon the question whether the exceptions were rightly or wrongly disallowed. But the court does not assume thereby to delegate to a commissioner the duty of deciding whether the truth of the exceptions alleged, or of any part of them, is legally established. Where the com missioner is in doubt whether, upon the facts proved before him *307the petitioner is entitled to the benefit of his exceptions, the proper course is for him to report the facts and submit the questions of law arising thereon to the court, as he has done in this case.
The question what exceptions are to be deemed in truth established so often requires a careful examination of the bill of exceptions as presented to the judge below, and as reported by the commissioner, that it is ordinarily most conveniently argued in connection with the argument upon the exceptions as proved, and, no special reason being shown for a different course, it may be so argued in this case. Motion overruled.
The case was argued accordingly by
D. W. Bond, for the defendant.
C. Delano, for the plaintiff, was not called upon.
Gbay, O. J.It is only where the exceptions taken by a party to rulings made at the trial, and presented by him in writing to the presiding judge, are conformable to the truth, that the statute makes it the duty of the judge to allow and sign them; and if the judge refuses or fails so to do, the truth of the exceptions presented must be established in order to entitle the party to have the rulings revised by this court. He has no right to the judgment of this court upon exceptions substantially different from those which he presented to the judge who presided at the trial. Gen. Sts. c. 115, §§ 7, 11. Bottum v. Fogle, 105 Mass. 42. When a party alleges several exceptions on different points, some of which he fails to prove, he may waive those, and argue such of the exceptions as he succeeds in establishing. Commonwealth v. Marshall, 15 Gray, 202. But he has no right to the benefit of any exception, which he does not prove the truth of substantially as it was originally presented.
The bill of exceptions presented in this case, (after stating the defendant’s requests for instructions to the jury as to the proper influence of any difference between the evidence introduced before them and that introduced before the auditor, and of his conclusions upon the evidence introduced before him,) asserts that the court declined to instruct the jury on this point, and does not *308state any instructions given to the jury as to the effect of the auditor’s report. The report of the commissioner shows that the presiding judge gave full instructions to the jury as to the weight to be given to an auditor’s report, and directed them to take the auditor’s report, “with the influence it ought to have.” The truth of the exception as presented upon this part of the case cannot therefore be deemed to be established. The question whether the defendant was aggrieved by the refusal to give the instructions requested is quite a different one, having regard to the instructions given, from what it would have been in the absence of further instructions. We may add that it does not appear to us that the proceedings and instruction's at the trial, as stated in the commissioner’s report, would afford the defendant any just ground of exception on this point. But as they have not been duly brought before us, we have no occasion to discuss them further.
The only other exception, though stated in various forms, is that the proof did not support the declaration. But it is well settled in this Commonwealth that under the common counts in indebitatus assumpsit at common law, or under a count on an account annexed under the new practice act, the plaintiff may recover either money due under a special contract which has been fully performed, or the value to the defendant of work done and materials furnished under it; and that when, under such a count he seeks to recover payment for building a house according to % special contract, and proves that he has substantially performec it, except in some comparatively slight deviations, the measure o damages is the contract price, deducting what the house wa worth less to the defendant by reason of such deviations. Hayward v. Leonard, 7 Pick. 181. Morse v. Potter, 4 Gray, 292. Walker v. Orange, 16 Gray, 193. Cardell v. Bridge, 9 Allen, 355. Powell v. Howard, 109 Mass. 192.
Exceptions overruled.