The plaintiff’s complaint states that he made plans and specifications for three houses, and procured bids for the same, at the request and by the. direction of the defendant, at an agreed compensation of two and a half per cent, upon the estimated cost of the buildings. The plaintiff then alleges that that percentage amounts to $250.
This complaint sets out a special contract entered into at the request of the defendant and performed by the plaintiff. Under our present practice, which is free from technicalities, it is mot defective by reason of the omissions stated in the demurrer.
After the demurrer was overruled it appears that the defendant answered over, alleging by way of defence that a contract had been entered into by the plaintiff and defendant materially different from that alleged in the complaint. Subsequently the defendant permitted a judgment by default to go against him,- and moved for a hearing in damages. Upon such hearing in damages the defendant, for the purpose of reducing the damages, offered evidence to prove that the contract stated in the complaint had never been made, but that an entirely different contract existed between *442the parties. The court excluded this evidence, and this ruling is assigned for error.
“It is generally held that on the assessment of damages, after a default, or on an equivalent state of the record, evidence denying the cause of action, or tending to show that no right of action exists, is inadmissible in mitigation of damages. * * * When an action is brought on a contract set out in the declaration, and there is a default, on the assessment of damages no evidence which goes to deny the. existence of the contract or tends to avoid it is competent; the default admits it as set forth, and concludes the defendant from denying it.” 1 Sutherland on Damages, 777.
In this state, in some actions of tort, notably in actions in which negligence is of the gist of the action, evidence in mitigation of damages, which evidence also tends to show the non-existence of some material element of the cause of action, is permitted. But this rule has never been extended to actions upon express contracts set forth in the complaint and we do not think it applicable to the case at bar.
Upon the construction of the contract stated in the complaint which is most favorable to the defendant, the only question left open after the default was the estimated cost of the buildings. This estimated cost we understand in this case to mean the reasonable cost of buildings erected in' accordance with the plans and specifications referred to and not necessarily the amount of some actual estimate made by a builder, nor an estimate agreed upon by the parties, nor yet an estimate or bid accepted by the defendant. The court below heard evidence as to such estimated cost of buildings to be erected in accordance with the plans and specifications, and upon this issue the defendant was fully heard. We need not consider whether the contract, if the plaintiff had insisted on such construction, should not have been construed as fixing‘by agreement of the parties such estimated value, for such sum would be larger than the sum fixed by the court, and as all parties upon the trial proceeded upon the construction most favorable to the defendant, there is nothing in this particular of which the defendant can complain.
*443Certain estimates and bids made by builders, which the plaintiff had obtained for the defendant in pursuance of the contract, were offered in evidence, and were objected to; on the specific grounds, 1st, that the defendant had not accepted the bids, and 2d, that the “estimate” referred to in the contract “ must be an estimate agreed upon by both plaintiff and defendant.” In this view of the contract the defendant was in error, and neither objection was well taken. We need not consider whether' the bids might not have been properly objected to on other grounds, for the defendant on this appeal must be confined to the particular questions raised and decided in the court below.
There is no error and a new trial is not granted.
In this opinion the other judges concurred.