The first question for us to determinéis, is this an action to .recover direct or consequential damages on account of the defendants’ failure to perform their contract ?
The plaintiff having abandoned so much of his petition as referred to the brick wall of his house, this action S3 for damages caused by the defendants’ failure to build the stone foundation wall in accordance with the-terms of their contract. Whether for direct or consequential damages, must be determined from the petition.
If this is an action for the direct damages caused by *540such failure on the part of the defendants, the measure of damages is the sum which it would reasonably take to make the foundation wall conform to the requirements of the contract. Haysler et al. v. Owens, 61 Mo. 272. This is so on the principle that the plaintiff was entitled to a foundation wall such as the defendants contracted to build. And this is so whether or not the plaintiff had expended said sum, or, in case he had expended said sum for said purpose, without regard to what had induced him to do so. So that, if this is an action for such direct damages, the plaintiff is entitled to recover in accordance with the measure of damages above stated, whether or not any consequential damages resulted from the defendant’s failure to build the foundation wall according to their contract — provided, there was such failure on the part of defendants. Although consequential damages did result to the house from such failure of defendants, the plaintiff could, if he chose, waive his right to recover on account thereof, and still recover the direct damages on account of said failure.
It is very evident that the petition is not framed with an idea to such direct-damages. There seems, from the petition, to have been a settlement between plaintiff and defendants, under the contract. That is, it seems that the house was completed by defendants, and accepted and paid for by the plaintiff. Thére is no allegation of want of notice or information by the plaintiff, at the time of payment, that the foundation wall was not such as called for by the contract. There is no averment in the petition as to the time at which plaintiff first learned that the foundation wall was not such as the contract required it to be. The petition does not allege that upon a discovery that the foundation wall was not such as it should have been, under the contract, the plaintiff proceeded to have it so made. But the petition does allege that the failure of defendants to construct the foundation wall as called for by the' contract, caused said foundation, and the walls of the house, to give away, the building to crack and settle, and the walls thereof to *541separate, thereby injuring the wood work and plastering in the building; and that thereby the house was rendered dangerous, unsafe and uninhabitable ; and that in order to make it safe, useful, and habitable ás a dwelling, “and to put the same in the condition that it should have been put, under the terms of said contract,” the-plaintiff was compelled to and did expend certain sums of money. The expenditure of the money was not the direct result of defendants’ failure to perform their contract, but was, as alleged, the consequence of a certain condition of affairs stated to have been caused by the defendants’ said failure. . The damages for the recovery of which this action is brought, are clearly consequential damages. They are not too remote. But, different from the direct damages, which are simply the difference between the value of the foundation wall as built, and the said wall as it should have been built, under the contract, no recovery should be had by the plaintiff on account thereof, unless they were caused by the failure of defendants to perform their contract.
It is true that the court, in the instructions given of its own motion, limited the plaintiff’s recovery to the-amount necessary to make the foundation wall “of the size, and as good as the contract required.” This is the true measure of damages in a case for the recovery of direct and not of consequential damages. The measure of damages as thus declared was too limited for a case like this. On account of this the defendants cannot complain, as they were not injured thereby. But this action, an action for consequential damages, was' not converted into an action for direct damages by said instruction declaring the measure of damages. The action remained such as the petition made it, and should have been tried as such.
The second instruction asked by the defendants should have been given. There was sufficient evidence in support of it. Abstractly considered that instruction states a correct proposition of law. If the damages, for the recovery of which the plaintiff seeks in this action. *542were not caused by the failure of defendants to perform their contract, but were caused by the defective plans of the foundation walls “as to its depth in the ground,” the plaintiff was not entitled to recover. The error of the court in refusing said instruction was not cured by the instruction as to the measure of damages. This action, as we have said, is an action for consequential damages; to prove the damages evidence was introduced ; as an action for consequential damages it waa treated by the court in all of the instructions, except in the one as to the measure of damages; we cannot, and will not, therefore, hold that, by reason of the erroneous instruction as to the measure of damages, the plaintiff should have recovered, even though the jury might have ■found from the evidence that the defective plan of the foundation wall, and not the failure of defendants to perform their contract, caused all the damages for which •a recovery was asked. The case was tried on the theory that it was for consequential damages, and it must be reviewed by us on the same theory. To do otherwise -would be especially unfair in this case, in which the evidence was confined exclusively to the consequential damages.
For the refusal by the court of defendants’ second instruction the judgment must be reversed. The first instruction asked by the defendants, and refused by the court was substantially the same as the first instruction given by the court on its own motion. On account of said refusal the defendants cannot complain.
The judgment is reversed and the cause is remanded.
All concur.