This is an action brought by the plaintiff corporation to recover compensation under a contract in writing to erect a passenger elevator in the defendant’s building.
The defendant excepted to the refusal of the court to instruct the jury as follows: “ 1. Upon all the evidence the plaintiff is not entitled to recover upon the express contract. 2. If a 10 H. P. motor by reason of its lack of power could not and did not run the elevator in a manner reasonably satisfactory to the defendant Puffer, the jury may find that the plaintiff has not complied with its contract and may deduct from the contract price the amount of -money expended by the defendant to leave the elevator in a satisfactory running manner.”
It is plain that the first request was rightly refused. Although there was much contradiction in the testimony, there was ample evidence to warrant a finding that the contract was performed by the plaintiff. We do not understand the defendant to argue this exception, unless it is necessarily involved in his argument upon the second request, by which he contends that if a ten horse power motor would not give reasonably satisfactory results because more power was needed, then it was the duty of the plaintiff under its contract to furnish a motor of larger horse power. It subsequently appeared according to the evidence that a motor of fifteen horse power was needed to make the elevator satisfactory for the uses to which the defendant desired to put it.
This question in regard to the construction of the contract, *425lies at the foundation of the case. We are of opinion that the judge rightly ruled that the motor called for was a ten horse power motor, and that if the plaintiff furnished one of that power, wound for five hundred volts, of standard quality, and workmanlike in its construction and operation, and performed the other parts of his contract, the defendant could not avoid liability because he needed a motor of larger horse power.
This question is also decisive of the exceptions as to the admission of testimony. The questions excluded called for answers applicable to a motor of fifteen horse power. Besides, these questions relate only to the damages to be deducted for the breach of the contract, and they are immaterial because the jury found for the whole contract price on the ground that the contract was fully performed.
Exceptions overruled.