This is an action to recover on the first count a certain instalment of money which the defendant agreed under a written building contract to pay the plaintiff “when building was finished on outside and all inspected for lathing.” Under a “third count” the plaintiff sought to recover under a separate special contract an agreed sum of money for work performed in substitution of and in addition to the work called for under the principal contract. Under a “fifth count” the plaintiff sought to recover damages by him sustained by reason of the unreasonable determination of the principal contract by the defendant after the partial performance of the contract by the plaintiff. Under a “sixth count” in quantum meruit the plaintiff sought to recover the value of the work, labor and material performed and furnished by him under the principal contract at a time when he •was interrupted in and deprived of an opportunity to fulfil that contract. The jury brought in a general verdict for the plaintiff not specifying the count on which the finding was made. The exceptions of the defendant relate to the judge’s charge.
Relative to the “fifth count” the judge instructed the jury in part as follows: “The plaintiff says that the contract was unjus*174tifiably terminated, and the burden is on him to show it, and if he satisfies you by a fair preponderance of the evidence that it was unjustifiably terminated, he is entitled to recover. What? He is entitled to recover what it cost him, or what his loss was, in other words. You will determine how much he expended in the construction of this work, what he put into it and the cost of what he put into it, what money he was out of pocket on account of this work, and also you may consider, although I don’t believe it is contended for here, but it is an element of damage also, the profits that he would have made on this contract if he was allowed to complete it; but there is no evidence of any profits here, so you need not consider it.” The defendant excepted to this portion of the charge and now contends that the true measure of damages is not the amount actually expended by the plaintiff in the construction of the work but is the fair value of that work, and that the jury should have been so instructed. No error appears in the charge. In the absence of evidence that the actual expenditures and outlays were extravagant and unnecessary for the purpose of carrying out the contract they are presumed to have been reasonably made and incurred by the injured party. United States v. Behan, 110 U. S. 338. United States v. United States Fidelity & Guaranty Co. 236 U. S. 512, 525. Cederberg v. Robison, 100 Cal. 93. Olds v. Mapes-Reeve Construction Co. 177 Mass. 41.
At the trial the plaintiff disclaimed and renounced every right to profits which would have resulted from the contract had he been permitted to perform it. The right to recover for work necessarily done or expense reasonably incurred is distinct.
The defendant excepted to that portion of the charge which dealt with the question of bad faith, the language referred to being as follows: “I spoke to you a moment ago about bad faith. If a man intentionally departs from a contract or does it in bad faith, he can’t recover, although the other side may be benefited, you may say, by getting the structure, but there may be bad faith and intentional departure in some parts of the work and not in all, so in those cases you may determine whether there was bad faith which went to the essence of the building itself, which affected it finally in its value, or whether the bad faith upon the evidence here is confined, to two particular things, the roof and the chimney. If it is confined to them and does not affect the rest *175of the building, he can’t recover, of course, as far as those items go, but if in all other respects he erected the building in good faith, and his departure was not a blamable departure from the requirements of the contract, he can recover for the benefit conferred upon this lady, if there was benefit.” It is plain the instructions complained of permitted the jury to find for the plaintiff, as it did, although it should find, as it did, that the plaintiff in bad faith departed from the contract in two particular things, not trivial, the roof and the chimney, if it should also find that there was no bad faith which went to the essence of the building itself, which affected it finally in its value and was not of such a substantial character as to defeat any right of action whatsoever. The question presented was decided in Sipley v. Stickney, 190 Mass. 43, 46, wherein the court referring to Homer v. Shaw, 177 Mass. 1, said: "But the doctrine of Homer v. Shaw does not necessarily reach the case at bar. For we assume that in Homer v. Shaw and the other cases supra the breach went to the essence of the contract, and that in the case at bar the failure to return accurate statements might have been held not to go to the essence of the contract. We also assume that a breach after part performance not going to the essence of the contract ordinarily will not prevent a recovery on the contract. But we are of opinion that a wilful default in the performance of a stipulation not going to the essence of the contract bars a recovery. In this Commonwealth, where there is a remedy under some circumstances outside the contract in case a building is erected on the defendant’s land, it is restricted 'to cases in which there is an honest intention to go by the contract.’ Hayward v. Leonard, 7 Pick. 181,187. To the same effect see Hattin v. Chase, 88 Maine, 237; Kane v. Stone Co. 39 Ohio St. 1; Moore v. Carter, 146 Penn. St. 492; Barrett v. Coal Co. 51 W. Va. 416.” See also Mark v. Stuart-Howland Co. 226 Mass. 35; Crane v. Knubel, 61 N. Y. 645; and Van Clief v. Van Vechten, 130 N. Y. 571, 579, wherein it is said, “While slight and insignificant imperfections or deviations may be overlooked on the principle of de minimis non curat lex, the contract in other respects must be performed according to its terms. When the refusal to proceed is wilful the difference between substantial and literal performance is bounded by the line of de minimis;” and cases cited. There is nothing in Bowen v. *176Kimbell, 203 Mass. 364, or in Handy v. Bliss, 204 Mass. 513, that gives countenance to the contention of the plaintiff as expressed in the charge.
The exceptions must be sustained.
Exceptions sustained.