The first objection the defendant relies ón is that the plaintiff can not recover under the special count for the unfinished machines not delivered, for the reason that the proof did not support the declaration. It appears by the declaration and the written contract in evidence, that the knives were to be made of cast steel, or cast steel with iron welded upon the sides, and that the machines were to be dovetailed together in a good workmanlike manner. The declaration alleges that the work was done (up to the time the plaintiff was prevented by the defendants’ neglect,) according to the contract. The proof was that the knives in the machines made, were made by direction of the defendants, given subsequent to the making of the contract, of old scythes, and that the old scythes were offcast steel with iron on the sides. We are unable to see in what particular these knives differ from the contract, in the absence of proof that they were less serviceable by reason of having been made of scythes. In this particular the performance proved agrees with that alleged. It is insisted that the machines being put together by mortices, tenons and pins by direction of the defendants given after the contract was made, instead of being dovetailed, constitutes a variance. This is claimed upon the ground that such direction, if it justified the plaintiff in changing the mode of constructing the machines,-is an alteration of the contract, and that it should have been so declared on. To constitute such alteration of the contract, the parties must have entered into some new binding engagement in this particular. The mere request or direction of the defendants to thus vary the mode of putting the machines together, and the plaintiff so making them in pursuance of that request, is no alteration of the contract. It does not amount to an agreement mutually binding that the machines should be so constructed, and therefore need not be stated in the declaration in describing the contract. But it is claimed that it is a different mode of performance from the performance alleged, and that in this respect there is a fatal variance. In this respect the proof does not literally agree with the performance aEeged. It would have been more circumstantially accurate to have alleged that the machines were made agreeably to the contract except in this particular, and that in this particular they were made in the *718manner they were, by direction of the defendants, or to their acceptance. At first I had doubts whether, according to the strict rules of pleading, some such allegation was not necessary to meet the proof in this case. It would give the defendant more specific notice of the facts on which the plaintiff relied. But the rules of pleading were made for practical use, and should be so applied as on the one hand to give the adverse party reasonable notice of what will be relied on at the trial, and on the other hand such strictness and particularity onght not to be required as to embarrass the administration of justice. We finally conclude, as there was no alteration of the contract, and the variation in the performance is so slight, that the proof in this respect Was a substantial satisfaction of the averment, in as much as the jury have found that the departure was by direction of the defendants and that it did not affect the character, utility Or value of the machines, and that it was treated by the'parties as a mode of performing the written contract.
2. It is insisted by the defendant’s counsel that the court erred in holding that, the common count for work and labor and materials furnished was adapted to the claim for the unfinished work not delivered. In this the court was wrong in point of law. It is clear that the property in these fifty-five machines never vested in the defendants, therefore the count for goods an'd chattels sold hnd delivered would not lie ; nor the count for work and labor and materials furnished. The materials never went to the defendants’ use, and the plaintiff never parted with the property in them, but still owns them. Nor can he recover for the labor bestowed upon them, for the labor was bestowed by the plaintiff 6n his own materials, and in a legal sense the labor goes to the plaintiff’s use, not the defendants’. Nor was the plaintiff in the employ of the defendants in such a sense as to enable him to recover for work and labor. The plaintiff was at work for himself in his own business, although at work upon machines intended for the defendants. It was the machines completed the defendants contracted for, not the plaintiff’s labor. There was no contract of hire, it was an agreement for the purchase of the product of the plaintiff’s labor, which the defendants never had and which the plaintiff still owns and retains. This is clearly *719so as it appears that none of the defendants’ castings had been put upon these unfinished machines. This part of the plaintiff’s claim is in the nature of damages for breach of a special contract, and cannot he recovered under the general count. But this is not an error of which the defendant has a right to complain, as there was a special count adapted to this part of the case. If the facts proved entitled the plaintiff to recover for this part of his claim and the charge in other respects was correct, it was indifferent to the defendant on which count the recovery was had* This error therefore worked no injury to the defendant.
3. As to the claim for finishing castings, we think the charge was correct. Had this been a contract b,y a foundry-man to make or furnish castings, the evidence as to the custom of the trade might have been properly left to the jury upon the question of the interpretation of the contract; but under this contract the defendants were bound to furnish castings finished and fitted for the use intended* If the defendants requested the plaintiff to finish and fit the castings for a compensation, as the charge required the jury to find, the defendants were bound to pay for it.
4. It is claimed on the part of the defendant that the charge ■of the court was not sufficiently specific as to what neglect of the defendants in furnishing the castings would justify the plaintiff in suspending the work. The court told the jury substantially that Unless they found the plaintiff was prevented from finishing the machines by the defendants’ neglect to furnish the castings, he could not recover for the unfinished machines, and that it was the defendants’ duty to furnish the castings as fast as was necessary to enable the plaintiff to finish the machines as fast as he had stipulated to complete them, that is, as fast as five men could manufacture them; and that the plaintiff was under no obligation to complete any machine till the defendants furnished the castings to do it with* The defendants’ counsel claimed that if there was no refusal by the defendants to furnish the castings, but only a neglect not wilful, to furnish some portion of the set, that is, the small iron boxes, it was the duty of the plaintiff to go on and complete the machines' and fit the castings on hand as far as he could conveniently in the • absence of the small boxes. *720Assuming that there was evidence on which to base this request, we think the defendant was not entitled to a charge in accordance with such request. The plaintiff was not bound to make two or more jobs of fitting the castings on a machine. The charge given on this point was as favorable to the defendant as he had a right to ask.
5. The rule of damages laid down in the charge, as applicable to the unfinished machines not delivered, is erroneous. The rule given to the jury is the value of the materials and labor upon them, to be estimated on the basis of the contract price of the juaehines when completed, that is, such portion of the stipulated price as the materials and labor bestowed bears to the materials and labor requisite to make and complete a machine. This rule gives to the plaintiff the full value of his materials and labor, and also the property. The property is, or may be, of some value to the plaintiff, and yet he receives the same as if the machines became the property of the defendant. The plaintiff’s right to recover on this branch of the case, is not for the value or price of his materials and labor, but for damages for being prevented from completing the machines and thereby entitling himself to receive the stipulated price. By the breach of the contract on the part of the defendants, the plaintiff is left with the unfinished machines on his hands, and whatever they are worth to him should be considered in estimating the damages. This point is decided in Boardman, Adm’r v. Keeler, 21 Vt. 78 ; and in other cases that might be cited. It is true that it is said in the books that if one party to a contract is ready and willing to perform, and is prevented by the other party, he is thereby excused from a performance, and that it is equivalent in law to a performance on his part. It is said also that an offer to perform is equivalent to a performance, if the other party refuses. This is all true so far as it relates to the right to recover, but not true as applicable to the rule of damages. This question was not raised in the county court by any request to charge, but as there is a general exception to the charge as given, the defendant has a right to avail himself of the error.
Judgment reversed and new trial granted.