The first count in the complaint is upon a written contract between the plaintiff and defendant, whereby the former agreed with the latter to erect, on her land a building for her, at a specified price, the payment, to be made at certain times in specified amounts as the work progressed. All the payments were made except the last, which the suit, is brought to recover. It avers, that, thei plaintiff complied with all the provisions of the contract on his part, and defendant, failed to comply with its terms on her part, in that she failed to pay the sum of $500, stipulated to be paid when the* building was completed. The common counts for the recovery of $591.50 were added,, for merchandise, goods and chattels sold by plaintiff to defendant, on to-wit, the first of -Tulv, 1900; and for a like sum due and payable on that. date, for work and labor done bv plaintiff for defendant, at her reouest. The case was tried, on the *518plea of the general issue, — the contention of the defendant being, that the plaintiff failed to perforin his contract to complete the building; that the work done and the material furnished him therefor were inferior in quality and value to that required by the contract; that the house as constructed by him was less in value than stipulated for in the contract, and defendant had paid him more than the reasonable value of the house as contracted, for.
In order to recover on a special contract, the plaintiff would not be entitled to recover without showing the performance of his undertaking under it. — 2 Mayfield’s Digest, p. 257, § 327; Kirkland v. Oats, 25 Ala. 467; Davis v. Badders, 95 Ala. 348. While this is true, it was held by the court, in the case last cited, (hat a recovery may be had under the common counts for work,' labor and materials, on proof that defendant moved into the house before completed, and continued to occupy it after the contractor quit working on it, and it was1 of benefit to him. The court quoted approvingly what was said in Thomas v. Ellis, 4 Ala. 108, that “nothing is more common than to permit a recovery upon an implied contract to pay the value of the labor, although it may not have amounted to a performance of the special contract; and this is always the rule when the defendant has accepted the work, or entered into possession and use of tl e house actually erected,” adding’, that “the same doctrine has been reasserted in the subsequent cases of Merriwether v. Taylor, 15 Ala. 735; English v. Wilson, 34 Ala. 301; Bell v. Teague, 85 Ala. 211.” In the case of English v. Wilson, just cited, which was a suit brought by Wilson against English, to recover a sum alleged to be due from defendant, for work and labor done by the plaintiff, in adding two rooms to the defendant’s dwcliing house, — a. case very similar in principle to the one in hand as to the count for work and labor,&wkey;the court held, that under the plea' of the general issue, the defendant was entitled to recoup the damages caused by the workman’s breach of contract in the performance of the work.
As to what constitutes acceptance of work done it is held, that it may be express or implied from the conduct *519of the employer,-.that tlie mere naked occupancy or use of a building erected on the land of ¡the owner does not, however, warrant an inference of acceptance of the work as done, in compliance with the contract, unless the possession and use be coupled with some act or some language, from which acceptance or acquiescence may be reasonably inferred, since the owner can not divest himself of possession without surrendering a portion of his freehold; that 'the owner is not bound to remove the building or abstain from using it, since being attached to his land, it becomes his property, and that part payment is not an acceptance, but only an acquiescence to the extent of the payment. — 6 Cyc. 67-69. Whether a contract has been performed according to the terms, and whether the fact of moving into and using the building amounts to an acceptance of the work as a full compliance on the part, of the builder with his contract, are questions to be determined by trial and depending on all the circumstances of the case. — Smith v. Brady, 17 N. Y. 173; s. c. 72 Amer. Dec. 442.
The evidence on the part of the* plaintiff tended to show, that lie had complied with all his undertakings; that lie had completed the construction of tire house in all respects as undertaken by the contract, and after completion thereof had tendered it to defendant, and she had accepted the same; that she had failed and refused to make the last payment, amounting to $490.50, and that nothing had been paid for extra work and materials amounting to $102.
The evidence for defendant tended to show that she moved into the house before it was completed by and with the consent of the plaintiff, who agreed to complete the same according to the contract after defendant moved in; that during the progress of the work, and after she. moved in, defendant made many complaints about alleged defects in the building. She also introduced evidence tending to show, that the house as constructed by plaintiff was not built in accordance with said contract; that the work done, and the materials furnished by him were inferior in quality and in value to that required by the contract; that the house as constructed was of less value *520than that stipulated for by contract, and that she had paid him more than the reasonable value of the. house as constructed.
The court at request of plaintiff gave to- 'the jury the general charge, as set out on page 10 of the transcript. In this, under the conflicting state- of the evidence-, there was manifest error.
The defendant requested four charges, numbered 2, 3, 6 and 8. The second and third may be considered 'together, as may the sixth and eighth. The- first two were erroneous on the ground, that the jury, under the evidence, would have been authorized to- infer, that there was an accept anee of the house by defendant, as and for a full compliance by plaintiff with the contract..
The sixth and eighth were free from error and should have; been given. These charges deal exclusively with the right of the plaintiff to- recover under the common counts. Under these counts if the evidence failed to reasonably satisfy the jury, that plaintiff had complied with the terms of his "contract, or that defendant accepted the hou-se as constructed, there could have been no recovery except for what might have been due., If anything, for extra, wox*k done and extra,material furnished. But, if upon the facts hypothesized in the charges, the jury was reasonably satisfied that the plaintiff bad complied with bis contract, or that defendant had accepted the house1- as constructed, the plaintiff would have been entitled to a verdict on those counts- for the amount shown to, he due an I owing. Tf it be said that the charges are misleading in the. use. of the word acceptance,, since the defendant might have had the use and benefit of the. house without acceptance, it must be noted 'that in each charge-, that word is accompanied with the words- “a,s constructed,” thereby limiting the acceptance of the house to its condition as constructed.
Reversed and remanded.