The plaintiff, in this case, claimed to recover for work and labour done, and materials furnished, in building for the defendants a school-house. Both parties claimed, that there was a special contract, under which the work was undertaken ; and, although they differed widely in regard to the terms of it, yet, it does not seem to have been questioned, that it was of such a character, as to make the plaintiff’s com*318pensation to depend upon performance, on his part, of the agreement, such as it was,
The plaintiff claimed, that he had performed his contractS The defendants insisted, that he had not; but that the work and materials varied, in many essential particulars, from the contract, as they claimed it ; particularly, that the work was not done in a workman-like manner ; that the materials were not such as the contract called for ; that some of the ~vork was left wholly undone ; and that it was not completed within the time, when, by the terms of the contract, it was to have been done. The defendants, also, denied, that they had ever accepted of the house; or that it had ever, in any way, come into their possession or use. And they claimed, that if it had not been built essentially according to the contract, the plaintiff could not, under these circumstances, recover any thing for what he had done.
There is no real difficulty as to the law on such a subject as this.
There is no difference in regard to the duty of performance, arising from the fact of its being a building contract. Contracts of this description are as binding as any other; and where a builder's compensation is made dependent on his performance, it is both just and legal, that his non-performance should deprive him of it. Good faith requires the performance of all contracts. If it be said, that it is very difficult for a builder literally to comply with all the minute specifications in a contract of this description, the answer is, the difficulty, if there be one, the builder takes into consideration when he makes his contract; and if it is such that he cannot comply with it, it is his folly to enter into the agreement. But there is no real difficulty. The law looks at the substantial performance; and if in good faith, and unintentionally, he departs, in some trifling particular, from the literal terms of the agreement; if it appear that the variation is unimportant ; no doubt he would be entitled to his compensation. 1 Saund. 216, n. 2. On this ground, in this case, the shape of the rafters, which, the defendants claimed, varied from the specifications in the contract, and, perhaps, the neglect of the plaintiff to groove the floor, and in lieu thereof, battening it, might be overlooked, as vaiiations too small to be noticed, if it was found, that the building was not injured in consequence *319of them. But if he has voluntarily departed from the terms of the contract, in any material or essential particular, or has not performed it within the time stipulated; and performance in these respects is made a condition on which he was to receive his compensation; then, by the terms of the law, which he has voluntarily prescribed for himself-his contract-he has no right to call for any pay.
The judge who tried the cause, in one part of his charge, recognizes these principles fully. He told the jury, that as it was admitted the mason-work had not been done, if the contract was, as claimed by the defendants, a contract to complete the whole house, including the mason-work, the plaintiff could not recover. But it was not, alone, in regard to the mason work,that the parties differed as to the terms of the contract. And, although the court might not have intended to instruct tha jury, that they would be authorized to render a verdict for the plaintiff, if he had voluntarily abandoned the contract, and refused to complete it, in any material particular; yet, we think, the manner in which the whole case was presented to them, such, that they might rensonably so have understood the charge.
The defendants claimed, that the work and materials va ned from the contract, in many essential particulars; and that, if the house had not been built, essentially, according to the contract. and had been of no benefit to the defendants, the plaintiffcould not recover.
The court did not meet this claim, or sanction it, in any other way than in its instruction to them in regard to the mason-work. We think this was clearly wrong. The defendants were right in this claim; and the neglect of the court to notice it, especially when taken in connexion with the instruction given in regard to the plaintiff's omission to complete the mason-work, might well have led the jury to suppose, that his omission of other important parts of the work, or his imperfect and unauthorized completion of it, would not subject him, and his cause, to a like result.
But the court went further than this. The jury were instructed, that if they found, that the plaintiff's contract was to do the carpenter and joiner work only, and to finish the materials; and that he had done it, and had built the house on the spot designated and sanctioned by the district; and had *320been suffered to go on and complete the house, without objection ; and if the house was reasonably fit for the p~rpo~e for which it was erected ; the plaintiff might recover what the house was reasonably worth, although there was a special contract which had not been strictly performed, in regard to the quality of the work and materials. This part of the charge was no doubt intended to rest on the ground, that where a party has performed work and furnished materials for another, though not according to the terms of a special agreement exisling between them, he may, in certain cases, recover a quantum meruit for the work and materials thus done and furnished ; and if the work and materials, under these circumstances, have been accepted, or have been beneficial to the party, the principle seems to be correct. Smith v. First Congreational Meeting-house in Lowell, 8 Pick. 178.
The error of the court, in this part of the charge, was, in assuming, that, if the building was on the spot designated by the district, and the plaintiff had been suffered to go on and build there, without objection, the house was necessarily beneficial to the district, if it was reasonably fit for the purpose for which it was erected. So far as the charge recognized the plaintiff's claim, that the building, being on the spot designated by the district, it was the same as if it was on the district's land, it was, undoubtedly, correct. But it was incorrect to say, that the house was beneficial to the district, because it was upon the district's land, or, upon land on which they had directed it to be budt. If it had been accepted by the district, then, no doubt it would be beneficial to them and they ought to pay what it was reasonably worth; or, if they had interfered, or should interfere, to prevent the plaintiff from removing it, then, it would seem, they ought to pay for it, But, until they have accepted it, or made use of it, or,, at least, have made claim to it, as being on their land, and have interfered to prevent the builder from removing if, they ought not to be compelled to pay any thing. The buifding, under such circumstances, would be one which they had never contracted for, and which they had never agreed to take; and to compel them to pay, would be making a contract for them, contrary to their wishes.
The district committee warned a district meeting at the *321new school-house, for the purpose of accepting it; and the meeting, thus warned, was held, and voted not to accept it; and, at the same meeting, they voted, that they would have a summer school. The plaintiff claims, that these acts amount to an acceptance of the house. It is clear, that the act of the committee, in warning the meeting at the new house, was not intended to have that effect; because it was a call upon the district collectively to act upon the subject. The district as clearly did not intend to accept it; because they expressly voted they would not accept it.
If, then, there is any thing that can amount to an acceptance, it is, the use they made of the house in holding a meeting there ; but the meeting was held for the purpose of accepting, or of refusing to accept, as it might see fit. A meeting for this purpose, we see no impropriety in their warning and holding at the new house. It might well enough be, that they chose to have the meeting in the new house, for the reason that it would be more convenient for the members of the district, each, to examine the house, and determine for himself, whether it was proper to accept it, rather than to appoint a committee to make the necessary examination. We do not think this fact, of itself, sufficient for the court to say, that it amounts to an acceptance. At most, it seems to amount to nothing more than evidence to go to a jury on the question of acceptance.
This being so, it is impossible for the court to say, as matter of law, that there was such an acceptance as rendered the district liable to pay a quantum meruit for the building.
For these reasons, we think the court erred, in submitting the case to the jury; and a new trial is, accordingly, advised.
In this opinion the other judges concurred.New trial to be granted.